Day v. National Bond & Investment Co.

• Decision Date: 08 December 1936
• Docket Number: No. 23616.,23616.
• Citation: 99 S.W.2d 117
• Court: Missouri Court of Appeals
• Parties: DAY v. NATIONAL BOND & INVESTMENT CO.

99 S.W.2d 117

DAY v. NATIONAL BOND & INVESTMENT CO.

No. 23616.

St. Louis Court of Appeals. Missouri.

December 8, 1936.

Rehearing Denied December 23, 1936.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Action by R. A. Day against the National Bond & Investment Company. Judgment for plaintiff, and defendant appeals.

Reversed.

John T. Casey, Lowenhaupt & Waite, and H. M. Stolar, all of St. Louis, for appellant.

L. C. Hummel and Louis Hudson, both of St. Louis, for respondent.

BECKER, Judge.

Plaintiff, in an alleged action in civil trespass obtained a judgment which included punitive as well as actual damages, and the defendant in due course appeals.

The essential facts necessary for our consideration in disposing of the questions presented here on this appeal are that plaintiff, in September, 1929, purchased an automobile, paying a part of the purchase price in cash, and for the balance executed a note secured by a chattel mortgage on said automobile, which note and chattel mortgage were purchased by defendant for value before maturity and without notice of any defect therein; that the chattel mortgage was duly recorded in the recorder's office in the city of St. Louis; that plaintiff was guilty of default in that on November 11, 1929, he failed to pay the sum of $115 due, according to the terms of the note and mortgage; that on December 9, 1929, the defendant filed replevin for the automobile in the Ninth justice district of the city of St. Louis; that on the following day Frank Doyle, agent and attorney for the defendant, together with one Jack Nece, went to the Titanium Pigment Company, located in the county of St. Louis, Mo., where plaintiff was employed, and on the premises of that company Doyle, agent and attorney for the defendant, in the presence of Elmer Sutton, who was plaintiff's foreman, introduced Nece to plaintiff as Constable Metz, constable of the Ninth district of the city of St. Louis, Mo., and stated that a replevin action for the automobile in question had been instituted and demanded the automobile of plaintiff; that Nece, who was neither constable nor deputy constable, but merely a special process server, handed plaintiff a replevin order of delivery for the automobile in question issued by the justice "within and for the 9th district of the city of St. Louis, Missouri," and that plaintiff, after discussing the matter with his foreman, who advised him "to let them take the machine so long as they were there with a lawful replevin and settle it with the law, * * *" accepted said advice, took Doyle and Nece to the automobile and, after taking some personal belongings out of the car, handed the keys of the automobile to Doyle and Doyle and Nece took possession thereof.

Appellant here assigns as error the overruling of its requested instruction in the nature of a demurrer to the evidence, requested at the close of all of the evidence. In our view the point is well taken.

It being conceded that the defendant, at the time it took the automobile from plaintiff, held a valid subsisting mortgage lien on the automobile, and that plaintiff, at the time, was in default, having failed to make payment provided for in said note and chattel mortgage, the defendant as mortgagee was entitled to possession of the automobile. The recognized rule is that after condition broken the mortgagee of personal property, at least for the purpose of possession and due foreclosure, is regarded as the absolute owner. Lange v. Midwest Motor Securities Co. (Mo.App.) 231 S.W. 272; Meyer Bros. Drug Co. v. Self, 77 Mo.App. 284; Robinson v. Campbell, 8 Mo. 365. As was pointed out in the case of Meyer Bros. Drug Co. v. Self, supra, "the mortgagee does not need the consent of the mortgagor to take possession after condition broken. He can take possession as he may. He can replevin the property. He may take it wherever he finds it. It is his property."

Under the law, upon the conceded facts, plaintiff was in duty bound to surrender the automobile to defendant at its request. If in fact Doyle and Nece falsely represented to plaintiff that Nece was Constable Metz, constable of the Ninth justice district of St. Louis, that was indeed reprehensible and indefensible upon any theory whatsoever. We, however, must pass upon the question before us, not in its moral, but in its legal aspect.

In presenting the legal aspect of the situation, we note that the replevin action was pending in the Ninth justice district in the city of St. Louis, but that it was in St. Louis county, at the plant of the Titanium Company that demand was made for the automobile. Obviously it was apparent from the face of the writ itself that it was without effect beyond the limits of the city of St. Louis and in law plaintiff must be viewed as fully cognizant of that fact. Wood v. Consolidated School District (Mo.App.) 7 S.W.(2d) 1018, loc. cit. 1021; Williams v. Bank, 221 Mo.App. 887, 289 S.W. 34; Hunter v. Hays (Mo. App.) 36 S.W.(2d) 957. Furthermore, the alleged fraud practiced on plaintiff merely caused him to do that which he was obligated to do irrespective of such fraud, and therefore plaintiff suffered no damage by reason thereof. In this situation the alleged fraud practiced upon him which caused no injury, was a moral, but cannot be a legal, wrong.

Plaintiff has cited cases in support of his contention that defendant must be viewed as having taken plaintiff's property by fraud, coercion, and intimidation amounting to force, and therefore by civil trespass. These cases are without avail under the facts.

In See v. Automobile Discount Corporation, 330 Mo. 906, 50 S.W.(2d) 993, 995, at the time the automobile was taken there was no conceded default under the terms of the chattel mortgage as exists in the instant case. Again, See had refused to surrender possession of the car and stated that the defendant would have to "take it by law," and thereupon defendant, without resorting to the remedy and processes afforded by the courts, invoked the services of the sheriff's office and a deputy sheriff thereupon took the car from the plaintiff under...