First Nat. Bank of Clayton v. Trimco Metal Products Co., 53099

• Decision Date: 08 July 1968
• Docket Number: No. 2,No. 53099,53099,2
• Citation: 429 S.W.2d 276
• Parties: FIRST NATIONAL BANK OF CLAYTON, a Corporation, Respondent, v. TRIMCO METAL PRODUCTS COMPANY, a Corporation, et al., Appellants
• Court: Missouri Supreme Court

Page 276

429 S.W.2d 276

FIRST NATIONAL BANK OF CLAYTON, a Corporation, Respondent, v. TRIMCO METAL PRODUCTS COMPANY, a Corporation, et al., Appellants.

No. 53099.

Supreme Court of Missouri, Division No. 2.

July 8, 1968.

Jack J. Schramm, Phillip B. Sachs, and Zimbalist, Sachs, Schramm & Branom, Clayton, for respondent.

Richard B. Dempsey and Dempsey & Dempsey, Clayton, for appellant.

DONNELLY, Judge.

This is a replevin action brought by First National Bank of Clayton against Trimco Metal Products Company, a corporation, and Delores Williams. The Bank dismissed without prejudice as to Delores Williams and Delores Williams dismissed her counterclaim without prejudice. The Bank moved for judgment on the pleadings, the motion was sustained, and judgment for possession of the property was entered for the Bank. Trimco appealed. We have jurisdiction because the value of the property is $20,267.64. Fergusson v. Comfort et al., 264 Mo. 274, 174 S.W. 411.

The petition alleges, in part, that on May 17, 1963, Trimco executed a promissory note secured by a chattel mortgage with right of possession upon default, and that Trimco defaulted in payment. Trimco admits its execution of the note and mortgage but 'denies that it was or now is the owner of the equipment referred to in the said petition.' Trimco asserts that Delores Williams was and now is the owner of the equipment and that the Bank had knowledge of this fact when the note and mortgage were executed.

Trimco asserts the Bank has no right to possession because Delores Williams is and was the owner of the property. We do not agree. In Pearl v. Interstate Securities Co., 357 Mo. 160, 164, 206 S.W.2d 975, 978, this Court en Banc stated:

'It is true that recovery in either replevin or conversion depends on the strength of plaintiff's own claim and not on the weakness of defendant's. However, as held in Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d (764) loc.cit. 767, 94 A.L.R. 941, 'the fact that a third person * * * may have some interest in the property will not preclude replevin by one having the right to possession as against the defendant sued.' Therefore, even though plaintiff did not have the legal title, he could recover from one without any right if he could show that he had a special property or interest in the cars which gave him the right to the possession thereof.'

Trimco admits the execution of the chattel mortgage. This gives the Bank, as against Trimco, a 'special property or interest' in the...