Duckett v. Keet & Rountree Dry Goods Company
| Citation | 73 S.W. 926,99 Mo.App. 444 |
| Parties | A. J. DUCKETT, Respondent, v. KEET & ROUNTREE DRY GOODS COMPANY, Appellant |
| Decision Date | 06 April 1903 |
| Court | Kansas Court of Appeals |
Appeal from Barton Circuit Court.--Hon. H. C. Timmonds, Judge.
REVERSED (with directions).
Judgment reversed.
Mann Sebree & Farrington and W. D. Tatlow for appellants.
(1) The chattel mortgage was fraudulent and void as to these defendants. It was so decided on the former appeal in the case of Dry Goods Co. v. Brown, 73 Mo.App. 245 which case was approved, and followed in the later case of Lowrence v. Barker, 82 Mo.App. 125. Also, see Williams v. Kirk, 68 Mo.App. 457. (2) There was no evidence of an oral independent agreement for a pledge between Duckett and Brown, and the instruction by the court of its own motion submitting that issue was erroneous. The law is well settled that an instruction should not be given when there is no evidence on which to base it. Culberson v. Railroad, 50 Mo.App. 560; Campbell v. Van Houten, 43 Mo.App. 239; Robertson v. Railroad, 152 Mo. 393. (3) Where there has been a palpable disregard of the law and evidence on the part of the jury, and the trial judge in refusing new trial has wrought manifest injustice it is the duty of the appellate court to reverse the judgment. Walton v. Railroad, 44 Mo.App. 620; Wilsett v. Ranson, 79 Mo. 258; Spaun v. Railroad, 87 Mo. 74; Garrett v. Greenwell, 92 Mo. 125. (4) There must be an abandonment of the claim under the fraudulent mortgage and a sole claim under a bona fide transaction before such change of theory is permissible. Wait on Fraudulent Conveyances (3 Ed.), sec. 357; Shoe Co. v. Arnold, 82 Mo.App. 10; Lowrence v. Barker, 82 Mo.App. 125.
Thurman, Wray & Timmonds for respondent.
(1) A pledge is a bailment or delivery of personal property as security for some debt or engagement. Story on Bailments (9 Ed.), sec. 286; Jones on Chattel Mortgages, sec. 2, 4; Jones on Pledges, sec. 1, 2, 3, 4, 5; 2 Bouv. Law Dict., 339; 2 Kent's Com. (12 Ed.), 578; 22 Am. and Eng. Ency. L. (2 Ed.), 842; Markham v. Judson, 41 N.Y. 235; Sterns v. Marsh, 47 Am. Dec. 248; Arendale v. Morgan, 5 Sneed (Tenn.) 730; Bank v. Harkness, 42 W.Va. 156-165; Conrad v. Fisher, 37 Mo.App. 366; McClintock v. Bank, 120 Mo. 132; Bank v. Ross, 9 Mo.App. 411. (2) Where the verdict of a jury is supported by any substantial testimony, the appellate courts will not interfere with it even where the evidence preponderates against the verdict. Chadwick v. Bumpus, 45 Mo. 111; Brown v. Railroad, 50 Mo. 466; Davis v. Railroad, 46 Mo.App. 180; Krider v. Milner, 99 Mo. 145; State ex rel. v. Gaither, 77 Mo. 306; Chouquette v. Railway, 152 Mo. 266; Ensor v. Smith, 57 Mo.App. 584; Langdon v. Kelly, 51 Mo.App. 572. (3) The defendants insist on having plaintiff claim title to the property in controversy under the chattel mortgage. The defendants plead this chattel mortgage in their answer and introduced it in evidence, as well as all the testimony pertaining to it. Plaintiff denied in his reply that he so claimed or held possession of it. He makes the same claim now that he did in the "Interplea case" herein referred to. He has always claimed to hold possession of the property as security for his debt without reference to his mortgage. The only circumstances tending to dispute this claim is the fact of the notice being posted on the door, and the permission granted Brown to assign the goods in his possession as security for the payment of some other debts. These things occurred after he had taken possession and his right to hold the same was complete as a pledge for his debt; after he had done exactly what defendant's manager advised he should do. (4) Frauds are either actual or constructive. An actual fraud is where a person intentionally deceives another by word or conduct for the purpose of inducing him to part with property or some other legal right, and thereby accomplishes the purpose. It involves the element of dishonesty of purpose and evil design. Green v. Nixon, 23 Beav. 535; 1 Bouv. Law Dict., 612; 1 Rap. Law. Dict., 545; 1 Story's Eq. Jur., secs. 168-187; Cooley on Torts, 474; Kerr on Fraud and Mistake, 42; 1 Bouv. Law Dict., 612; 14 Am. and Eng. Ency. L. (2 Ed.), 21, sub-div. 3; Potter v. McDowell, 31 Mo. 62; Bank v. Powers, 134 Mo. 445; Bank v. Buck, 123 Mo. 153; Williams v. Kirk, 68 Mo.App. 462; Greeley v. Reading, 74 Mo. 309; Petring v. Chrisler, 90 Mo. 649; Dobyns v. Meyer, 95 Mo. 132; Davis v. Owenby, 14 Mo. 177; Sappington v. Oeschli, 49 Mo. 244; Bank v. Rohrer, 138 Mo. 369; Hord v. Harlan, 143 Mo. 469; Bank v. Newkirk, 144 Mo. 472; Drug Co. v. Self, 77 Mo.App. 284. (5) If the mortgage was only constructively fraudulent, instead of being fraudulent in fact, possession under it vested in plaintiff the right to the property to the extent of his debt. Greeley v. Reading, 74 Mo. 309; Petring v. Chrisler, 90 Mo. 649; Dobyns v. Meyer, 95 Mo. 132; Boland v. Ross, 120 Mo. 217; Barton v. Sitlington, 128 Mo. 164; Bank v. Powers, 134 Mo. 445; Nash v. Norman, 5 Mo.App. 545; Brass Co. v. Webster G. and Q. Co., 37 Mo.App. 145; Furn. Co. v. Fricke, 39 Mo.App. 146; Melke & Co. v. Boldridge, 43 Mo.App. 336; State ex rel. v. Distilling Co., 60 Mo.App. 440; Shoe Co. v. Arnold, 82 Mo.App. 1.
--This case, substantially, was before this court on a former occasion under the title of Keet & Rountree Dry Goods Company, appellant, v. T. L. Brown, Jr., defendant; A. J. Duckett, interpleader, respondent, and will be found reported in 73 Mo.App. 245. For convenience and to avoid repetition, we adopt the statement made by Judge GILL in that case.
It is claimed by the respondent that the aspect of the case is different from what it formerly appeared. We will call attention to this difference. On the former appeal the case was reversed and remanded, whereupon respondent dismissed his interplea therein and brought this suit for conversion. On his interplea in that case plaintiff claimed the goods in controversy on the ground, as shown by the record, that he was entitled to them by virtue of his mortgage and by reason of the fact that they were turned over to him as a pledge to secure certain indebtedness. This court held: "A mortgage which has been withheld from record in such way as to render it invalid as against creditors will not be validated as to intervening creditors by filing it of record and taking possession thereunder." And in speaking of plaintiff's claim under a pledge, the court used the following language, viz.: "The suggestion in brief for interpleader that the latter did not take possession under his mortgage, but rather under an independent agreement for a pledge made between him and Brown. . . . is opposed by all the evidence and the conduct of the parties at the time, as will be seen by reference to the facts set out in our statement." The defendant contends that the statement of the court quoted constitutes a finding on the issue and is therefore res adjudicata.
On the trial of this case plaintiff was asked: Answer: " Question: Answer: Question: "Did you take possession of those goods by virtue of the chattel mortgage?" Answer: He then states that after taking possession, Brown talked with Young, who had drawn the mortgage, whose advice was that a notice be put on the door of the building that contained the goods that he had taken possession of them under his mortgage. Young also advised him to go to Greenfield and have his mortgage recorded. He was also asked: "Did you have any idea that your mortgage was defective in any way?" To which he answered: ...
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