Exchange Nat. Bank v. Daley

• Decision Date: 30 January 1922
• Docket Number: No. 14228.,14228.
• Citation: 237 S.W. 846
• Parties: EXCHANGE NAT. BANK OF TULSA, OKI., v. DALEY.
• Court: Missouri Court of Appeals

237 S.W. 846

EXCHANGE NAT. BANK OF TULSA, OKI., v. DALEY.

No. 14228.

Kansas City Court of Appeals. Missouri.

January 30, 1922.

Rehearing Denied February 20, 1922.

Appeal from Circuit Court, Jackson County; C. A. Burney, Judge.

"Not to be officially published."

Action by the Exchange National Bank of Tulsa, Okl., against A. W. Daley. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Walter W. Calvin, of Kansas City, for appellant.

R. L. Adams and W. D. Bush, both of Kansas City, for respondent.

BLAND, J.

This is an action for conversion. There was a verdict and judgment in favor of plaintiff in the sum of $650, and defendant has appealed.

The facts show that on July 6, 1915, Clarence H. Dickson and Florence E. Dickson, his wife, made, executed, and delivered to the plaintiff, a banking corporation of the state of Oklahoma, a note in the sum of $1,025, and to secure the same executed a mortgage on household goods owned by Clarence H. Dickson and situated in Kansas City, Jackson county, Mo. The mortgage was filed in the office of the recorder of deeds of Jackson county, Mo., on July 20, 1915. The note provided that it should be due on September 4, 1915, and bore 10 per cent. interest after maturity and until paid. The mortgagors covenanted in the mortgage that they would pay the note at maturity; that in case the note was not paid when due the mortgagee might take possession of the mortgaged property and foreclose the mortgage in the manner provided by the statutes of Missouri.

The facts show that three payments of $25 each were made upon the note. These were made on September 14, 1915, March 3, 1916, and September 5, 1916. That the interest was paid to March 3, 1917. In 1918 Clarence H. Dickson having left Kansas City, his wife for a prior indebtedness of her husband, of $990 and an advancement to her of an additional sum of money, sold the property covered by the chattel mortgage to the defendant and gave him a bill of sale therefor. The defendant removed the household goods from the residence where it was situated and disposed of them.

The petition alleges the execution of the note and mortgage, the Sling of the same in the office of the recorder of deeds, and pleads the statute of Oklahoma allowing 10 per cent. interest when the parties agree to the payment of the same; that on or about the 13th day of May, 1918, defendant took the goods described in the chattel mortgage into his possession under a claim of ownership thereof and removed the same from the residence of the mortgagors, and "that afterwards the plaintiff herein, while the said mortgage was in full force and effect and unsatisfied, and while said note was in default and unpaid, did demand of defendant the possession of said property under the terms of said mortgage to satisfy the aforesaid note and mortgage lien." It then alleges that defendant refused to deliver possession of the property and asserted the ownership thereof to be in himself; "that by reason of the wrongful and unlawful conversion by defendant of the goods, chattels, and personal property above described and set forth in said mortgage, the plaintiff has been damaged in a sum equal to the amount due the plaintiff as aforesaid, under and by the terms of said note and mortgage; that the sum of $1,190 is now due plaintiff on said note as principal and interest to date, thereon, that 10 per cent. thereof plus said attorney's fee is due and owing the plaintiff, or a total sum of $1,448 now due the plaintiff under said mortgage." The petition then prays judgment for the said sum of $1,448 with interest at the rate of 10 per cent. per annum.

Defendant insists that the petition fails to state a cause of action for the reason that it does not allege that plaintiff was the owner of the property at the time of the alleged conversion and that it was at that time entitled to the possession thereof. There was no attack made on the petition at the trial, except an objection to the introduction of any testimony on the ground that the petition failed to state a cause of action. This method of attacking the petition is not looked upon with favor. If the petition states any cause of action, even though it is defectively stated, it is good after verdict. Storage & Moving Co. v. Harding, 126 Mo. App. 489, 104 S. W. 484; State ex rel. v. Reynolds, 137 Mo. App. 261, 117 S. W. 653; McDonald v. Mangold, 61 Mo. App. 291; Peters v. K. C. Rys. Co., 204 Mo. 197, 224 S. W. 25; O'Connell v. Kansas City (Mo. App.) 231 S. W. 1040. While the petition does not in express terms allege that at the time of the conversion the condition of the chattel mortgage was broken by reason of the nonpayment of the note, it alleges this in effect, therefore at this time the petition must be taken as containing an allegation of that kind. After condition broken, the mortgagee may take possession or replevin the...