General Excavator Co. v. Emory

• Decision Date: 30 June 1931
• Docket Number: No. 21752.,21752.
• Citation: 40 S.W.2d 490
• Parties: GENERAL EXCAVATOR CO. v. EMORY.
• Court: Missouri Court of Appeals

40 S.W.2d 490

GENERAL EXCAVATOR CO. v. EMORY.

No. 21752.

St. Louis Court of Appeals. Missouri.

June 30, 1931.

Rehearing Denied July 10, 1931.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by the General Excavator Company against A. Emory. From an order refusing to revoke an interlocutory order appointing a receiver, defendant appeals.

Affirmed.

William J. Becker, of St. Louis, for appellant.

Joseph C. McAtee, of Clayton, for respondent.

BENNICK, C.

This is an appeal from an order of the circuit court of the city of St. Louis, refusing to revoke an interlocutory order appointing a receiver.

Plaintiff, General Excavator Company, is a corporation, organized and existing under the laws of the state of Ohio, and engaged in the manufacture and sale of road-building equipment. One H. B. Owsley, who does business under the name of Lakewood Equipment Company, is its distributor in the city of St. Louis and surrounding territory. Defendant, A. Emory, is a contractor, specializing in road construction.

On September 25, 1928, Owsley sold defendant a steam shovel, the terms of the sale calling for the payment of approximately $1,200 in cash, with the balance of the purchase price to be evidenced by fifteen monthly notes, each for the principal sum of $489.32. Plaintiff's evidence was that, coincident with the transaction, a conditional sales contract was executed, by the terms of which title to the machine remained either in Owsley or in plaintiff until the full purchase price was paid. At the hearing on the petition for the appointment of a receiver, the contract was not introduced in evidence, and, consequently, its precise effect may not now be stated. Owsley's own testimony was that he bought the machine from plaintiff and then sold it to defendant, and that afterwards he assigned the notes and contract to plaintiff.

On April 12, 1930, the present action was instituted, the same being in twelve counts, the first eleven of which pray for judgment upon each of eleven of the notes.

In the twelfth count, plaintiff pleaded the sale, the execution of the notes and the conditional sales contract, and the indorsement of the notes to it; that it held the legal title to the equipment as security for the payment of said indebtedness; and that there was due and owing to it from defendant the total sum of $5,537.27.

Plaintiff then alleged that the equipment was being used and operated by defendant in excavating and general contracting work; that plaintiff had retained a lien thereon; and that, in equity and good conscience, such lien should be foreclosed, and the property sold, and the proceeds of the sale devoted to the payment of costs, and the extinguishment of defendant's indebtedness.

It was further alleged that the property was rapidly depreciating in value by reason of the fact that defendant was constantly using the same; that plaintiff's security was thereby being destroyed and lessened, and would be likely to depreciate further unless the court should appoint a receiver to take charge of the property, and hold the same pending the trial of the cause; and that plaintiff was without adequate and complete remedy in the premises, and without the interposition of a court of equity would be irreparably damaged.

The prayer was for a judgment foreclosing plaintiff's lien upon the property; that the property be sold pursuant to such judgment and decree; that the proceeds of the sale be applied upon plaintiff's claim, after the payment of costs; that if there should be a deficiency after the making of the sale, an accounting should be had, and a general judgment rendered against defendant, and in favor of plaintiff, for the sum found still to be due; that the court would appoint a receiver to take charge of and hold the property pending final disposition of the issues; and that plaintiff have and recover all such other relief, including general relief, as might be just, equitable, and proper.

Along with the above petition, plaintiff filed a supplemental petition, alleging that the value of the property was rapidly depreciating on account of the rough use which defendant made of it, and praying for the appointment of a receiver to take charge of the property, and to collect and hold the earnings of and from the same until the final disposition of the cause.

On April 18, 1930, defendant, by leave of court, entered his appearance for the limited purpose of opposing the appointment of a receiver. On the same day, the court issued its order to show cause why a receiver should not be appointed, and on April 24, 1930, defendant filed his return thereto.

At the hearing, plaintiff's evidence showed that defendant had left the machine exposed to the elements; that he had employed a different operator for practically every job; and that if the depreciation of the machine was allowed to continue, in two year's time it would be absolutely worthless. It was shown, further, that if the machine was put under cover, and the working parts covered with grease and oil to...