Forgan v. Bridges

• Decision Date: 02 March 1926
• Docket Number: No. 4000.,4000.
• Citation: 281 S.W. 134
• Parties: FORGAN et al. v. BRIDGES et al.
• Court: Missouri Court of Appeals

281 S.W. 134

FORGAN et al. v. BRIDGES et al.

No. 4000.

Springfield Court of Appeals. Missouri.

March 2, 1926.

Appeal from Circuit Court, Mississippi County; Frank Kelley, Judge.

Replevin by David R. Forgan and others, trustees of the Commercial Credit Trust, against George H. Bridges and others composing the firm of Davison Bros. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. M. Haw, of Charleston, and Jones, Rocker, Sullivan & Angert, of St. Louis, for appellants.

Russell & Joslyn, of Charleston, for respondents.

COX, P. J.

Action in replevin for possession of two automobiles. Trial by jury, verdict and judgment for defendants, and plaintiffs appealed.

Plaintiffs' right of recovery rests upon the contention that the title to the two automobiles is in plaintiffs, and hence they are entitled to the possession of them. The real contest in this case is between plaintiffs and defendant Bridges, and he claims under a chattel mortgage executed by Davison Bros., a partnership engaged in selling automobiles at retail in Charleston, Mo. This chattel mortgage was regular on its face and duly recorded. Davisons, the mortgagors, maintained a garage in the town of Charleston and kept the two automobiles in question and others on exhibition in their garage for sale at retail. The Davisons had secured these automobiles from the Spalding Motor Company of St. Louis, who bought automobiles from the factories and disposed of them to retail dealers. The manner in which this disposition to Davidson Bros. was made lies at the bottom of this controversy. Defendant Bridges claims under a chattel mortgage executed by Davison Bros. while the automobiles were on display by them in their garage and, as far as known to Bridges, they were the owners thereof and holding them for sale in the usual way. Plaintiffs claim under what is called trust receipts and drafts. They are the same as to both cars except as to the amounts and description of the cars. One of these trust receipts is as follows:

                               "St. Louis, Mo., April 24, 1923
                

"Received of Spalding Motor Company, Inc., St. Louis, Mo., acting for Commercial Acceptance Trust, Chicago, Ill., the owner thereof, one new Durant motor vehicle, model 1 B touring serial No. M-4405, motor No. X-14600, complete with all standard catalogue attachments and equipment, in consideration whereof and of being permitted to drive said motor vehicle from above (shipper's) town and state to, and to display same in our regular place of business at, Charleston, Mo., and with liberty to us to exhibit and sell the same for their account for cash not less than $1,092.16, we agree at our expense to store, warehouse, and to hold said motor vehicle in trust for the holder of the time draft of even date herewith (which we have this day accepted) as their property and to return same on demand in good order and unused (except as provided above), and we further agree, in case of sale as permitted above, to keep the proceeds separate from our funds and immediately pay over the proceeds to them without any expense or cost of whatsoever nature to the holder of said time draft. The acceptance of time draft equal in amount to the value of said motor vehicle shall not be effective to terminate this trust, but said draft and any sums delivered by us shall be security for the performance of the things obligatory upon us hereunder.

"We further agree to keep a separate account on our regular books of the, motor vehicles delivered to us under this or any like receipt and any other motor vehicles that have been or may hereafter be delivered to us under the same form or similiar form of receipt and of the proceeds thereof when sold, to report any sale to the holder of said time draft immediately after the same is made, and further hereby agree to furnish to them on the 1st of each month a true and complete report for the preceding month, which shall show the exact number of motor vehicles on hand held by us under this or similar receipts. We will also permit them or their duly accredited representatives or agents to examine our books and inspect the cars in our possession at any time.

"Commercial Acceptance Trust shall, during the entire time said car is held hereunder, keep said car insured against loss by fire and theft for not less than the wholesale price at the factory of said motor vehicles, and provide for a surety bond, the risk under which is hereby agreed may be carried by the company for the accounting for the car or the proceeds thereof, to be effective in the event of our failure to redeliver said car on demand. We shall, until redelivery thereof, pay as damages for detention for each month, or any part thereof after demand, 1 per cent. of said sale price.

"We further agree to pay all costs, charges, expenses, disbursements, including reasonable attorney's fees (15 per cent. of sale price of car if permitted by law), should the holder thereof find it necessary to protect his property in said car by placing it in the hands of an attorney, and further that the waiver of any default shall not operate as a waiver of subsequent defaults, but all rights hereunder shall continue, notwithstanding any one or more waivers. We acknowledge receipt of a true copy of this agreement.

                            "[Signed] Davison Bros
                                "By B. B. Davison, Trustee."
                

The draft is as follows:

                                "St. Louis, Mo., April 24, 1923
                

"On or before August 24, 1923, pay to the order of Commercial Acceptance Trust, Chicago, Ill., if demand be made, one thousand ninety-two & 16/100 (1,092.16) as security for acceptor's obligation under negotiable trust receipt bearing number hereof covering Durant motor vehicle serial No. M-4405, motor No. X-14600, together with an attorney's fee of 15 per cent. (if permitted by law), should the holder hereof elect to require payment and place the draft in the hands of an attorney for collection. Demand, protest, and notice of protest waived.

                    "Value received and charge
                          "[Signed] Spalding Motor Company
                               "By C. W. Spalding, Pres."
                

Written across face:

"Accepted. Date 4/24-23. Mississippi County Bank (acceptor's legal bank), Charleston, Mo. (address of bank). Payor, Davison Bros., by B. B. Davison."

These trust receipts and drafts were not recorded and Bridges had no knowledge that they were in existence at the time he took the chattel mortgage under which he claims. At the time Davisons secured the automobiles from the Spalding Motor Company, they paid to the Spalding Company 15 per cent. of the...