Forsee v. Zenner

• Decision Date: 12 February 1917
• Docket Number: No. 12290.,12290.
• Citation: 193 S.W. 975
• Parties: FORSEE v. ZENNER.
• Court: Missouri Court of Appeals

193 S.W. 975

FORSEE v. ZENNER.

No. 12290.

Kansas City Court of Appeals. Missouri.

February 12, 1917.

Rehearing Denied March 5, 1917.

Appeal from Circuit Court, Jackson County; Thos. B. Buckner, Judge.

"Not to be officially published."

Replevin in justice court by S. F. Forsee against John Zenner. Judgment for defendant, and plaintiff appealed to circuit court, where defendant had judgment, and upon a new trial defendant again had judgment, and plaintiff appeals. Affirmed.

M. M. Bogie and Forsee & Forsee, all of Kansas City, for appellant. Ernest A. Scholer, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff brought replevin in a justice court to recover possession of a span of mules and harness, the statement being in the usual form, alleging generally that the plaintiff "is lawfully entitled to the possession of" the property, etc., without specifying the ground upon which the claim of the right to possession was based. Plaintiff lost in the justice court, and appealed to the circuit court. Upon a trial there, the defendant once more prevailed and obtained a verdict for a return of the property and $500 in damages. A new trial was granted, and again defendant won, the jury returning a verdict finding that defendant was entitled to the possession of the property, the value of which was assessed at $350, and assessing defendant's damages for the taking and detention thereof at $295. A remittitur of $145 of the damages being entered, judgment was rendered accordingly. Thereupon plaintiff appealed.

It seems that plaintiff, being the owner of a farm, entered into a contract with defendant whereby the latter was to move with his family upon the farm and cultivate it, receiving for his compensation one-third of the products produced thereon. Defendant went upon said farm and began work. The two animals belonging to plaintiff on the farm — an old horse and an aged mule — proving insufficient to properly do the farm work, defendant purchased the team of mules and harness in question from a man by the name of Sweetman, for whom he had worked the year before, agreeing to pay $350 for them. Defendant was expecting his share of an estate to be sent him from Europe, and, pending its arrival, he desired to give a note for the purchase price of the mules and harness. Sweetman agreed to accept a note if plaintiff would also go on it. Plaintiff agreed to do this, but required defendant to give him a chattel mortgage on the mules and harness to secure him. Defendant thereupon executed to plaintiff a chattel mortgage on the mules and harness, plaintiff went on defendants' note to Sweetman, and defendant obtained the team and harness and took it to the farm. Shortly thereafter defendant's estate arrived from Europe, and out of it he paid Sweetman's note in full, but did not obtain from plaintiff the chattel mortgage he had given. The contract in regard to the farm was made February 26, 1914. The chattel mortgage recites that it was given on the ____ day of March, 1914, but it is conceded that it was written some days before defendant signed it. And defendant paid off the Sweetman note some time in April.

By the time summer arrived plaintiff and defendant were both dissatisfied, plaintiff with the way in which defendant was doing, and defendant with the farm and his prospects of making anything. The latter tried to sell out his interest under the contract, and obtained plaintiff's consent to sell to one McBroom, but when plaintiff discovered that defendant was going to sell for $175, he refused to permit the sale, and said he would buy defendant out himself at that price, and it was agreed that $100 of this amount should be retained by plaintiff to repay him for his part of products sold off the farm by defendant, but not accounted for to plaintiff. This left $75 due from plaintiff to defendant. The latter surrendered possession of the farm and left that night, taking some of his things, and expecting to get the $75 the next day by calling for it at plaintiff's office in Kansas City. He called next morning, but plaintiff refused to pay him the $75, or to give him a receipt for the $100 as having been accepted in payment of the sums received by defendant for produce and not theretofore accounted for. When the agreement for the sale of defendant's interest at $175 was made, the defendant was contemplating going to the Western harvest fields to seek employment, and after the agreement to sell to plaintiff for $175 was made on the farm, but before defendant had left, plaintiff asked defendant if he would not leave his team there, and defendant agreed to do so until the crop was raised. When defendant learned the next day when he called at plaintiff's office that he was not going to get the $75, and could not get a receipt for the $100 to show that he had settled for all sums due from him for produce sold, he became fearful lest he would lose his mules and harness also if he allowed them to remain longer on the farm. He therefore went at once to the farm, and obtained the rest of his things, including the mules and harness, and took them away. The next day plaintiff replevied the said mules and harness.

In making the foregoing statement we have accepted defendant's evidence as true which we are required to do in view of the fact that the jury has found a verdict in his favor. Plaintiff's evidence does not agree with defendant's in many particulars, notably, that in relation to the sale of defendant's interest in the contract concerning the farm, plaintiff denying that he agreed to purchase defendant's interest. He also claimed that defendant threw up his contract and abandoned the farm, agreeing at the time, however, to leave the mules there as security for the amount defendant owed him for products sold off the farm and not accounted for.

Plaintiff places his right to the possession of the property in controversy upon two grounds, viz.: (1) The chattel mortgage dated the ____ day of March, 1914, which contains a paragraph stating that it is given not only to secure the payment of the Sweetman note, but also to secure the faithful performance of each and every of the terms of the farming contract hereinabove referred to, and provides that upon the mortgagor's failure to carry out each and every one of the terms of said contract, the mortgage may be foreclosed. (2) That defendant verbally agreed to leave the mules on the farm as a security for the debt he owed plaintiff.

According to defendant's evidence, when the chattel mortgage was arranged for and given, there was nothing said about its being a security for anything except the payment of the Sweetman note, and that when he executed said mortgage, it did not provide for anything else. He testified that when plaintiff handed him the chattel mortgage, he asked plaintiff what it was, and plaintiff replied, "That is security for me, and whenever you don't pay for those mules they are mine;" that he looked it over, but did not read it carefully, as he had left his wife down on the street holding the team, and, as it was not city broke, he was afraid to leave them long, and was in a hurry. Plaintiff's testimony agrees with that of defendant's that nothing was said at that time about the mortgage being also security for the performance of the farming contract, but he says that was agreed to beforehand when the mortgage was first talked of. Defendant denies this. His defense is, therefore, that the chattel mortgage was fraudulently altered by the subsequent insertion of said additional paragraph covering the faithful performance of the farming contract. He further claims that he owed plaintiff nothing, since there was an executed sale of his interest in the farm to plaintiff and the application by the latter of $100 of the purchase price to the complete payment and liquidation of any debt due from defendant to plaintiff for the sale of any products in which plaintiff had an interest and for which defendant had not accounted at the time of the sale.

The questions whether the chattel mortgage was altered by the insertion of the additional feature of the farming contract subsequent to the execution of the mortgage, and whether there was a sale of defendant's interest to plaintiff and a cancellation of defendant's debt, and whether there was a verbal agreement to leave the mules on the farm as a security for defendant's debt to plaintiff, were all matters for the jury to determine. Of course if there was a sale of defendant's interest and a cancellation of the debt he owed plaintiff, then there was no debt in existence for which the mules could be verbally left as security, but since the jury might believe the mortgage was altered, but might not believe there was a sale of defendant's interest or a cancellation of his debt, it was proper to submit all three of the questions to the jury, as was done.

Appellant has not brought up the entire evidence, but only parts thereof. Much of that which is brought up is in narrative form, which frequently amounts to no more than appellant's conclusion as to the force and effect of the testimony, and this is especially true with regard to those parts of the record reciting that evidence was offered "tending to prove" so-and-so. In view of this condition of the record, we could not disturb the verdict on account of the alleged insufficiency of the evidence. Davies v. Boyers, 140 Mo. App. 593, 120 S. W. 631; Nash v. Kansas City Hydraulic Press Brick Co., 109 Mo. App. 600, 83 S. W. 90. Doubtless this rule will not apply if it appears from the record that is brought up that respondent's testimony clearly and conclusively shows he has no defense. His testimony, however, is not of that character.

So far as concerns the evidence that is preserved in the record, it is sufficient to support a verdict either way, and amply sufficient to support respondent's contention as to the facts. His testimony that he could have carefully read the...