Ess v. Griffith

• Decision Date: 26 March 1895
• Citation: 30 S.W. 343,128 Mo. 50
• Parties: ESS v. GRIFFITH et al.
• Court: Missouri Supreme Court

30 S.W. 343

128 Mo. 50

ESS v. GRIFFITH et al.

Supreme Court of Missouri, Division No. 1.

March 26, 1895.

ACTION FOR CONVERSION — CLAIM UNDER MORTGAGE SALE — PARTIES — IMPEACHING TESTIMONY — DEPOSITION AS FOUNDATION.

1. Sess. Acts 1891, p. 70, authorizing an appeal from an order granting a new trial, and providing, that the failure to so appeal shall not affect one's right to have the action of the court reviewed on an appeal from the final judgment, does not give one who fails to appeal from an order granting a new trial and participates in the new trial the right to have such order reviewed on appeal from the final judgment.

2. In an action for wrongful conversion, defendants having purchased the property from one holding by virtue of an alleged foreclosure sale, it was proper to charge that the jury should find for the plaintiff if the foreclosure sale was fictitious and void, but that defendants were not liable if it should be found that such foreclosure sale was had, and that defendants' vendor actually purchased and paid for the property then sold, or if the plaintiff had allowed such vendor to hold himself out as absolute owner of the property under the sale, and defendants, relying on this apparent ownership, purchased the property in good faith, and for valuable consideration.

3. In an action for conversion, one who purchased the property as agent, knowing that the mortgage under the alleged foreclosure of which his vendor claimed to hold was unsatisfied of record, together with his principal, who received the property, were properly joined as defendants with the vendor.

4. Where the testimony of a witness at a former trial, preserved in the stenographer's notes, was read in evidence at a second trial, the witness residing in another state, it was error to exclude a deposition of such witness laying the foundation for impeaching testimony, taken prior to the second trial, in the presence of the opposing counsel, and concerning facts which had come to the knowledge of the party taking the deposition after the former trial.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Henry N. Ess, administrator, against Samuel P. Griffith and others. From a judgment for plaintiff, both plaintiff and defendants appeal. Reversed.

Leon Block, for plaintiff. Elijah Robinson, for defendants.

MACFARLANE, J.

Plaintiff, as administrator of Charles T. Fowler, sued defendants, Griffith, the Great Western Type Foundry, and S. A. Pierce, for the conversion of certain printing presses, type, etc., claimed as the property of plaintiff's intestate. There were three trials. The first resulted in a verdict for defendants, and a new trial was granted. The second resulted in a verdict for plaintiff for $3,383. On motion of defendants, this verdict was set aside, and a new trial granted. To this action of the court plaintiff excepted, and filed a bill of exceptions, but took no appeal. On a third trial, in which plaintiff participated, he obtained a judgment for $598, and both plaintiff and defendants appealed. In this appeal plaintiff seeks to have the action of the circuit court in granting a new trial reviewed, and a judgment entered on his verdict on the second trial.

Plaintiff's intestate held a mortgage on the property in question, to secure an indebtedness then amounting to about $3,000. The mortgage was made by one Clark, and was dated in 1885, and was overdue. It contained a power of sale. In January, 1889, the property belonged to one Reber, subject to the mortgage. On January 23, 1889, Fowler made this contract with one W. J. A. Montgomery: "It is hereby contracted and agreed between Chas. T. Fowler and W. J. A. Montgomery as follows: Upon the refusal of J. S. Reber to pay said Fowler $500, said Fowler is to sell to said Montgomery his interest and claim in the Junction Steam Printing House, with accrued interest, amounting to $3,000. Said Montgomery is to pay $500 in sixty days, and the remainder in sums of $500, at intervals of six months thereafter, until all of said purchase price is paid; all of these notes to be secured by chattel mortgage on said printing material and to bear interest at ten per cent. per annum. In witness whereof, we have set our hands, this 23d day of January, 1889." Fowler at once took possession under the mortgage, and advertised the property for sale. On the 26th day of January, 1889, Montgomery executed and delivered to defendant Griffith a mortgage, with power of sale, on the same property, to secure a note for $1,050. This mortgage was not recorded until April 6, 1889. The sale was made February 9, 1889. It was understood that the bidding should be free, and, if the property was bought by Montgomery, he should have it on the terms agreed upon in the contract. The sale was public, and the property was knocked off to Montgomery, at his bid of $2,000. These two contracts, each signed by Fowler and Montgomery, were read in evidence:

"Kansas City, Mo., Feby. 9th, 1889. This article of agreement witnesseth: That this day W. J. A. Montgomery has purchased of Chas. T. Fowler his investment and interest in the Junction Steam Printing House for $3,000, together with a certain farm in Macon Co., Mo., and six lots in East Kansas City, Mo., which said Fowler holds as collateral security. The said Montgomery is to pay $500 in sixty days, and the remainder in sums of $500 every six months thereafter, as evidenced by his promissory notes of even date herewith. And the said Montgomery hereby assumes, indorses, and reassigns the mortgage given by Geo. H. Clark, which remains unsatisfied and unreleased, as security for the payment of said Fowler's investment and the purchase price of said printing material. It is further agreed that, upon the payment of the above $3,000, then a complete conveyance shall be made of said printing material and to said lands. But if, at the expiration of sixty days, the first payment of $500 is not made, then the whole of the $3,000 shall become due and payable, and said Fowler may take possession of said printing material, and dispose of it as he may deem best. Chas. T. Fowler. W. J. A. Montgomery."

"Kansas City, Mo., Feby. 9th, 1889. In consideration that W. J. A. Montgomery move the Junction Steam Printing House to the Milwaukee building, put it in good condition and running order, Chas. T. Fowler grants possession, and guaranties against all claims excepting those specified in the mortgage and the conditions of contract entered into between W. J. A. Montgomery and Chas. T. Fowler, of even date herewith. W. J. A. Montgomery. Chas. T. Fowler."

The Clark mortgage, when read in evidence, had these indorsements on it:

"Feby. 9th, 1889. For value received, I hereby assign this mortgage to W. J. A. Montgomery. Chas. T. Fowler."

"Feby. 9th, 1889. For value received, I hereby reassign and indorse this mortgage and note to Chas. T. Fowler. W. J. A. Montgomery."

There was some dispute about the correct date of these contracts and assignments. After this sale, possession of the property was given to Montgomery, who removed it to another building in Kansas City, and made the ordinary use of it. On April 9, 1889, Montgomery made a mortgage on the property to secure a debt of one E. H. Wittee, which was recorded April 10, 1889, and contained a power of sale. This mortgage was subsequently assigned to Griffith. Under the powers contained in his own and the Wittee mortgages, Griffith sold the property to defendant Pierce, who was the agent and acted for the defendant the type foundry, which disposed of it in its usual course of business.

The court gave this instruction, in lieu of one asked by plaintiff: "The court instructs the jury that if you believe from the evidence that C. T. Fowler was the owner of the note and mortgage from Geo. H. Clark (as read in evidence); that said Fowler offered the property mentioned in said mortgage for sale under said mortgage; that the only bidder at said sale under said mortgage was W. J. A. Montgomery; that he did not pay the amount bid by him, and that, by agreement between Fowler and Montgomery, said Fowler assigned said note and mortgage to said Montgomery, who assumed, indorsed, and reassigned the same to said Fowler, in order to keep the same alive for said Fowler's security, and that said Fowler thereupon gave possession to said Montgomery; that thereafter the defendant Griffith claimed said property, and took possession of the same, and sold the same absolutely to the defendant the Great Western Type Foundry, and that defendant Pierce was secretary, treasurer, and manager of said type foundry, and had said printing outfit hauled away to the place of business of said type foundry; that C. T. Fowler is dead; that Henry N. Ess is his administrator, — then you will find for plaintiff, against all the defendants. But if, on the other hand, you should believe from the evidence that the sale of the property by Fowler was for the purpose of foreclosing the equity of said Clark or his grantee in said property, and at said sale Montgomery bought the property absolutely, and it was not agreed and was not the intention of Fowler and Montgomery to keep alive the Clark mortgage for the security of Fowler's indebtedness by assigning and reassigning the said note and mortgage, then you will find for the defendants; or if you believe that Fowler knowingly permitted Montgomery, after taking possession of said...