Embree v. Roney
| Decision Date | 05 December 1910 |
| Citation | 133 S.W. 83,152 Mo.App. 257 |
| Parties | B. W. EMBREE, Appellant, v. J. H. RONEY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Ray Circuit Court.--Hon. Francis H. Trimble, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
Clark & Joiner, Metcalf, Brady & Sherman for appellant.
The court of its own motion modified instruction No. 2 as requested by the plaintiff, by adding at the conclusion thereof the words, "But if at the time the mortgage securing plaintiff's notes was taken the mortgagee, W. H Gatlin or his agent, had notice of possession, if any, of Roney then it is not material whether said possession was notorious or not," the court also gave instruction number four over the objection of the plaintiff and refused instruction "A" as requested by the plaintiff. In this the court committed error. Plaintiff was a purchaser of the notes before maturity and for value, with no actual knowledge of the claims of the defendant. The mortgage which secured his notes passed to him as an incident to the note and was not affected by any equities that would not affect the notes. Bank v. Eubanks, 124 Mo.App. 503.
M. G Roberts, George W. Crowley and Lavelock & Kirkpatrick for respondent.
(1) The mortgage executed March 8, 1909, by Goodyear for benefit of Gatlin was to secure a pre-existing debt without new consideration, and neither Gatlin nor plaintiff were equivalent to bona fide purchasers for value. Dry Goods Co. v. Bank, 81 Mo.App. 283; Board of Trustees v Fry & Woods, 192 Mo. 563. (2) The Gatlin mortgage was taken to secure a pre-existing debt without any new consideration and with notice of Roney's prior mortgage and possession, therefore, Gatlin and plaintiff held subject to Roney's claim. Jones on Chattel Mortgages, sec. 178, p. 213; Greeley v. Reading, 74 Mo. 309; Bank v. Totten, 114 Mo.App. 108. (3) After Goodyear executed mortgage to Roney he could not sell or mortgage drug stock except subject to Roney's right. Jones on Chattel Mortgages, sec. 462, p. 526; White v. Quinlam, 30 Mo.App. 65. (4) The case was submitted on proper instructions; the verdict was supported by substantial evidence; appellate courts will not weigh conflicting testimony but will accept the jury's verdict as conclusive. Veale v. Greene, 105 Mo.App. 187; Corum v. Railroad, 129 Mo.App. 497.
This is a suit for conversion. Plaintiff claims title to a stock of drugs located in a store at Lawson, Missouri, by virtue of a chattel mortgage dated March 8, 1909, and filed for record March 10. The mortgage was executed by one A. K. Goodyear to secure twenty promissory notes dated September 30, 1907, each for the sum of one hundred dollars, payable consecutively the first day of the month beginning the first day of April, 1909, bearing interest at the rate of seven per cent and payable to one A. S. Houck. They were endorsed in blank by the payee, and the mortgage was made to E. C. and W. H. Gatlin, the then holders. Subsequently they came into the hands of plaintiff Embree.
The defendant claims the goods under a prior mortgage executed by Goodyear December 12, 1908, to secure defendant as his surety on a note of that date for money borrowed at the time. This mortgage was filed for record December 14, 1908. It provided that defendant Roney was to have immediate possession of the stock of goods and continue in such possession of the same and receive the proceeds of goods sold and apply them to the payment of the note until the same was fully paid.
The plaintiffs' evidence tends to show that defendant did not take possession of the goods at the date of his mortgage, but that Goodyear was in possession and dealing with them as if they were his own property. That about the 30th day of April, 1909, Goodyear turned the goods over to a Mr. Engle, plaintiff's agent, with the key to the building, at which time plaintiff and Goodyear entered into a contract in writing by the terms of which plaintiff employed Goodyear to work in his store at a compensation of $ 7.50 per week. This was on Friday. Goodyear remained in the store about an hour and then went to Kansas City, where plaintiff also went. They returned to Lawson on Sunday and were in the store and plaintiff when he went out locked the door and carried the keys. On Monday morning defendant came with a man calling himself a constable, and demanded possession. Plaintiff demanded to know "by what authority," whereupon defendant reached in his pocket and took out some papers and handed them to the constable and the latter said: "I am the constable and this is my authority." Plaintiff then said, "I am in possession and I am going to hold it until I am put out; Mr. Goodyear gave me possession." Until the next day plaintiff stayed in the store all the time and the constable and defendant were also there a part of the time. In the afternoon of Tuesday when plaintiff was standing in the door, defendant and constable closed the door behind him and thus shut him out and kept him out.
During the time defendant claims to have been in possession of the goods there was no change from Goodyear to him in the account kept in the bank. The new goods were purchased in the name of Goodyear, and no change was made in the sign on the store, and there was no outward indications of change of possession. From the time defendant claims to have been in possession, Goodyear sold goods in the usual course of business, and it was made to appear on defendant's cross-examination that they never had any settlement because they could not agree upon its terms and that Goodyear never paid him any of the proceeds of the sales; that new goods were purchased in the name of Goodyear and the money taken in was deposited in his name.
Defendant's evidence went to show that he put Goodyear in the store as his agent to run it for him; that he told the latter to attend to it for him and run it just as "he had run it," as he did not have time to run it himself; that he would be there every day and would see everything that was going on, but that he wanted him (Goodyear) "to run the whole thing for him;" that they consulted almost daily about the business; that Goodyear reported to him how the business was progressing and that they frequently went over the books of the concern; that Goodyear made reports to him of...
To continue reading
Request your trial