Geiser Mfg. Co. v. Todd

• Decision Date: 20 April 1918
• Docket Number: No. 2019.,2019.
• Parties: GEISER MFG. CO. v. TODD
• Court: Missouri Court of Appeals

204 S.W. 287

GEISER MFG. CO. v. TODD

No. 2019.

Springfield Court of Appeals. Missouri.

April 20, 1918.

Rehearing Denied June 27, 1918.

Appeal from Circuit Court, Greene County;

Guy D. Kirby, Judge.

Action by the Geiser Manufacturing Company, a corporation, against Vernon C. Todd. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Ellis, Cook & Barnett, of Kansas City, and Wright Bros., of Springfield, for appellant. Watson & Page, of Springfield, for respondent.

BRADLEY, J.

December 14, 1908, one L. S. Phillips, at that time a resident of Boone county, Ark., gave a chattel mortgage to plaintiff on an engine and other sawmill property bought from plaintiff to secure a part of the purchase price evidenced by certain notes. This mortgage was duly recorded in Boone county, Ark. May 10, 1911, Phillips bought other sawmill property from plaintiff, and gave a chattel mortgage on same to secure payment of purchase-price notes. This mortgage was duly recorded in Boone county, Ark. In April, 1912, Phillips moved from Boone county, Ark., to Taney county, Mo. (the two counties join, and Phillips moved only a few miles), and, with the consent of plaintiff, moved at the same time the mortgaged property, or the greater portion thereof, to Taney county, Mo. A fire destroyed part of the property described in the above-mentioned mortgages before Phillips moved to Missouri, as we understand from the record. Phillips moved to Missouri for the purpose of cutting into lumber certain timber in Missouri owned by defendant, and thought he needed a better outfit for this contract, and took up with plaintiff company, which had a branch office in Springfield, Mo., the matter of buying a secondhand engine. Some correspondence passed, and finally on June 1, 1912, Phillips and defendant went to Springfield. While in Springfield, at plaintiff's office, Phillips bought (or thought he bought) from plaintiff the machinery he desired, a new traction engine. Phillips still owed plaintiff a considerable amount on the notes secured by the Arkansas mortgages, and was buying this engine in part on a credit. Plaintiff tried to get defendant to sign the purchase-price notes with Phillips, but this defendant declined to do. When defendant refused to sign these notes plaintiff prepared a written instrument in the form of a letter addressed to defendant, and Phillips signed this letter or instrument, also defendant signed, acknowledging receipt. This instrument was a written direction to defendant to hold back sufficient earnings from the contract between defendant and Phillips to secure payment on the notes to be given to plaintiff by Phillips for the new engine.

In addition to agreeing to hold back the earnings, defendant agreed to advance a cash payment of $225 on the engine. Phillips signed an order for the new engine, which order set out the terms, $225 cash, the various notes, amount of each, when due, etc., and also provided that Phillips was to give back to plaintiff a first mortgage lien on the engine to secure deferred payments. With the order signed up, and the written direction to hold back sufficient earnings to pay the deferred payments, Phillips and defendant returned home. Plaintiff did not ship the engine. Defendant, ill at case, because he had only a limited time to remove the timber he had bought, wrote, telegraphed, and called up plaintiff in Springfield to ascertain why the engine was not shipped. Plaintiff advised him that Phillips owed it considerable on old accounts, and that it would not ship the engine unless $200 was paid on Phillips' old account, $225 paid in cash on the purchase price of the new engine, and $125 cash on the engine by September. Defendant, in his extremity, agreed to make these payments if plaintiff would ship the engine. Plaintiff shipped the engine to Phillips and defendant made the payments as he agreed. These payments, with what Phillips already owed defendant for other advancements in the way of pay rolls, etc., made Phillips debtor to defendant in a considerable amount.

Plaintiff, after it shipped the engine to Phillips, prepared and forwarded to Hollister (Phillips' address in Taney county) certain notes and a mortgage to be executed. On June 25, 1912, Phillips signed these notes, and duly executed and acknowledged the mortgage. On the same day, but afterwards, as we understand from the record, Phillips gave defendant a mortgage on this new engine and other mortgaged property moved from Arkansas. Defendant's mortgage was recorded in Taney county on July 8, and plaintiff's on July 12, 1912. Phillips' note to defendant dated June 25, 1912, which note the mortgage was given to secure, was due on demand. In June, 1914, defendant foreclosed under his mortgage, and took possession of the property, and a few days thereafter plaintiff replevined under its two Arkansas mortgages and its Missouri mortgage.

The venue was changed from Taney to Greene county, and tried before the court without a jury, resulting in a finding and judgment for defendant, and plaintiff appealed.

No declarations of law were asked and none given, but the trial court of its own motion made a finding of facts, and announced its conclusion of law thereon. There are but two propositions for our determination: (1) Are the Arkansas mortgages, under the facts, superior to defendant's mortgage? (2) Is plaintiff's Missouri mortgage void as to defendant?

1. The record discloses the finding of facts and conclusions of law made by the trial court as follows:

"The court finds the facts in this case to be that in December, 1908, the plaintiff sold to one L. S. Phillips certain personal property described in the pleadings, and shipped the same to him in Boone county, Ark., and took from him a chattel mortgage on the same for the purchase price, and said mortgage was recorded in Boone county, Ark., January 20, 1909. The plaintiff in May, 1911, sold the said L. S. Phillips certain personal property, and shipped the same to said Phillips in Boone county, Ark., and took a mortgage on the same for the purchase price, which mortgage was recorded in Boone county, Ark., May 18, 1911. The said L. S. Phillips in April, 1912, moved part of said property purchased by him from plaintiff to Taney county, Mo., and this was so moved by and with the consent of the plaintiff given to Phillips. In June, 1912, the plaintiff sold to said L. S. Phillips certain personal property and delivered the same to him in Taney county, Mo., and took from him a mortgage on the same to secure the payment of the purchase price, which mortgage was recorded in Taney county, Mo., on July 12, 1912. The said Phillips on the 25th of June, 1912, executed to the defendant, Todd, a note for $844.36 for an indebtedness due said Todd by Phillips, and gave .Todd a chattel mortgage on certain property located in Taney county, Mo., aid consisting in part of a portion of the property sold by plaintiff to Phillips and formerly located in Boone Co., Ark., and in part of the property sold by plaintiff to Phillips and delivered to him in Taney county, Mo. This mortgage so given by Phillips to defendant, Todd, was recorded in Taney county, Mo., July 8, 1912. On this finding the court holds that plaintiff's mortgage covering the property originally located in Arkansas, and moved to Taney county, Mo., with the consent of the plaintiff, ceased by such removal to constitute notice to defendant, and that the mortgage given by Phillips to the plaintiff on the property originally sent to Taney county, Mo., not being recorded or possession of the property not being taken by plaintiff prior to the time plaintiff's mortgage was recorded, on July 8, 1912, was, as to defendant, Todd, void."

Defendant denied that he knew of the Arkansas mortgages or had any information concerning them. Plaintiff introduced in evidence the laws of Arkansas, so far as pertinent, concerning chattel mortgages, and showed that it had complied with the laws of that state by recording its mortgages in the proper county, and seeks to follow the mortgaged chattels into this state and enforce its liens, admittedly prior in point of time of execution and record to defendant's mortgage. To support its contention in this respect plaintiff cites Smith v. Hutchings, 30 Mo. 380; National Bank of Commerce v. Morris, 114 Mo. 255, 21 S. W. 511, 19 L. R. A. 463, 35 Am. St. Rep. 754; Feurt v. Rowell, 62 Mo. 524; Bank v. Metcalf, 29 Mo. App. 384; and Brown v. Koenig, 99 Mo. App. 653, 74 S. W. 407; Nbut an examination of these cases shows that there was no question about the mortgagee having given his consent for the removal of the mortgaged property from its situs when mortgaged in another state. The doctrine of comity applies only when the mortgaged chattel is moved from its situs without the knowledge or consent of the mortgagee; but we find no case in our state on this point. 11 C. J. states the matter thus:

"The great weight of authority is to the effect that a chattel mortgage, properly executed and recorded according to the law of the place where the mortgage is executed and the property is located, will, if valid there, be held valid even as against creditors and purchasers in good faith in another state to which the property is removed by the mortgagor, unless there is some statute in that state to the contrary, or unless the transaction contravenes the settled law or policy of the forum. In some jurisdictions this is held to be the rule without regard to the presence or absence of consent or knowledge on the part of the mortgagee as to the removal; but by the better authority it seems that, where the mortgagee has consented to the removal of the property, he will forfeit his right to a lien unless he takes such steps as are required for its protection by the statutes of the state into which the property is removed."

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