Globe Securities Co. v. Gardner Motor Co.

• Decision Date: 09 July 1935
• Citation: 85 S.W.2d 561,337 Mo. 177
• Parties: Globe Securities Company, a Corporation, Appellant, v. Gardner Motor Company, Inc., a Corporation, Gardner-Paup Motors, Inc., a Corporation, and Motor Brokerage Sales Company, a Corporation
• Court: Missouri Supreme Court

85 S.W.2d 561

337 Mo. 177

Globe Securities Company, a Corporation, Appellant, v. Gardner Motor Company, Inc., a Corporation, Gardner-Paup Motors, Inc., a Corporation, and Motor Brokerage Sales Company, a Corporation

Supreme Court of Missouri

July 9, 1935

Motion for Rehearing Overruled July 9, 1935.

Disputed issues which were in pleadings of plaintiff and evidence pertaining thereto would not be considered on appeal where such issues had been disproved and specifically abandoned in brief of plaintiff and court had found against plaintiff on all of such issues.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge; Opinion filed at September Term, 1934, April 17, 1935 motion for rehearing filed; motion overruled at May Term July 9, 1935.

Affirmed.

Harry Jenkins, Jenkins & Vance, S. L. Trusty and Trusty & Pugh for appellant.

(1) The trust receipt should not prevail in this case because: They should have been recorded either because of Section 3125, Revised Statutes 1929, requiring a conditional sales contract to be recorded; or because of Section 3097, Revised Statutes 1929, requiring a deed of trust on personal property to be recorded; or because of Section 3097, Revised Statutes 1929, requiring a chattel mortgage to be recorded. Secs. 3097, 3125, R. S. 1929; 3 Blashfield on Automobiles, p. 2425; Industrial Finance Corp. v. Capplemann, 284 F. 8; Clark v. Flynn, 199 N.Y.S. 583; Kolb v. Golden Rule Baking Co., 9 S.W.2d 840; McManus v. Walters, 62 Kan. 128, 17 A. L. R. 1421; United States v. Humberd, 30 F.2d 413; Carrollton Acceptance Co. v. Wharton, 22 S.W.2d 985; Commercial Credit Co. v. Schlegel, 23 S.W.2d 702; Geppelt v. Middle West Stone Co., 90 Kan. 539; In re Richheimer, 221 F. 16; In re Bettman-Johnson Co., 250 F. 657; Foreign Trade Banking Corp. v. Gersetta Corp., 237 N.Y. 265; New York Sec. & Tr. Co. v. Lipman, 157 N.Y. 551; Commonwealth Fin. Co. v. Schutt, 116 A. 722; Universal Credit Co. v. Motor Co., 73 S.W.2d 909; In re Collinwood Motor Co. v. Universal Credit Co., 72 F.2d 137; Am. & B. Securities Co. v. Am. & B. Mfg. Corp., 275 F. 121; McLeod Nash Motors Inc. v. Com. Credit Trust, 246 N.W. 17; In re Draughn & Steele Motor Co., 49 F.2d 636; 36 A. L. R. 753; 25 A. L. R. 332; 45 A. L. R. 962. Globe Securities was an innocent purchaser for value within the meaning of the above statutes. 11 C. J., pp. 517-520; Bell v. Barnes, 87 Mo.App. 451; Morris v. McMahan, 75 Mo.App. 494; Kingsland v. Drumm, 80 Mo. 646; Oyler v. Renfro, 86 Mo.App. 321; Wurmser v. Sivey, 52 Mo.App. 424; Calkins v. Howard, 2 Cal.App. 233; Smith v. Becker, 192 Mo.App. 597; Peters v. Featherstun, 61 Mo.App. 466; R. S. 1889, secs. 5178, 5180; Am. Clay Machinery Co. v. Sedalia Brick & Tile Co., 174 Mo.App. 485; Jenkins Music Co. v. Wilson, 209 S.W. 987; Studebaker Bros. Mfg. Co. v. Elsey-Hemphill Carriage Co., 133 S.W. 412; Straus v. Rothan, 41 Mo.App. 602; Kemper v. Bank, 72 Mo.App. 226; R. S. 1929, sec. 3125; In re Bennett, 264 F. 537; R. S. 1929, sec. 3097. (2) The instruments used and the course of dealing created a sale, or vested the dealer with an interest that could be mortgaged, and this would be so regardless of the recording statute. R. S. 1929, sec. 7759. (3) If the second set of trust receipts, taken December 15, 1928, and after the automobiles had been in possession of and on sale by the distributor for weeks or months, created or kept title in the respondent, Gardner Motor Company, or gave it any right superior to plaintiff's chattel mortgages taken between the second and third set of trust receipts, and such second set of trust receipts were taken up by a third set being executed on April 10, 1929, for new and different amounts, and the second set were canceled and surrendered, thereby becoming valueless, the chattel mortgages, being filed of record and overdue, took priority over the third set of trust receipts. Smith v. Bynum, 92 N.C. 108; Horne v. Young, 40 Ga. 193; Weston v. Wiley, 78 Ind. 54; Young v. Smith, 45 P. 45; First State Bank v. Cooper, 179 S.W. 295; 8 C. J. 571; Kimbell v. Hartford, 248 Ill.App. 23, 11 C. J. 674; 5 R. C. L. 453; Lange v. Midwest Motor Sec., 231 S.W. 272; Meyer Bros. Drug Co. v. Self, 77 Mo.App. 284; Holmes v. Strayhorn-Hutton Comm. Co., 81 Mo.App. 97; Leavel v. Johnston, 232 S.W. 1064; Exch. Natl. Bank of Tulsa v. Daley, 237 S.W. 846; Jackson v. Cunningham, 28 Mo.App. 354; Edmonston v. Jones, 96 Mo.App. 83; Brunke v. Salinger, 8 S.W.2d 88; Robertson v. Campbell, 8 Mo. 615; Robinson v. Campbell, 8 Mo. 365; Berry v. Adams, 71 S.W.2d 130; 8 C. J. 572; Cuvillier v. Fraser, 5 U. C. Q. B.; Citizens Com. Bank v. Platt, 135 Mich. 267. (4) The evidence is such as to estop the Gardner Motor Company from claiming any right superior to plaintiff. Adamson v. Fogelstrom, 300 S.W. 841; Western States Accep. Corp. v. Bank of Italy, 61 Cal.App. 597, 31 A. L. R. 937; Edwards v. Baldwin Piano Co., 79 Fla. 143; In re Fountain, 282 F. 816; Canal-Commercial Trust & Sav. Bank v. New Orleans, 109 So. 834; Gen. Motor Accep. Corp. v. Boddeker, 274 S.W. 1016; Ohio Sav. Bank & Trust Co. v. Schneider, 211 N.W. 248; Jones v. Com. Inv. Trust, 228 P. 896; Texas Bank & Trust Co. v. Teich, 283 S.W. 552; Simons v. Finance Corp., 171 N.E. 643; 3 Blashfield, p. 2424; In re James, Inc., 30 F.2d 558. (5) Independent of the above propositions, the instruments involved and dealings between the Gardner Motor Company, and the local dealer, should constitute the local dealer a trustee, thereby possessing power to sell, or mortgage. Moffett v. Kent, 5 S.W.2d 395; Myers v. Hale, 17 Mo.App. 210; Parker v. Rodes, 79 Mo. 91; Richardson v. Means, 22 Mo. 498; Gibbons v. Gentry, 20 Mo. 476; Bergesch v. Keevil, 19 Mo. 127; Cook v. Smith, 200 Mo.App. 218, 204 S.W. 919; Pace v. Pierce, 49 Mo. 395; Lacey v. Giboney, 36 Mo. 320; Wurmser v. Sivey, 52 Mo.App. 428; In re Bennett, 264 F. 537. (6) The court erred in refusing plaintiff's findings marked 4, 5, 6, 7, 8 and 9 and rendering a judgment against the plaintiff, and in favor of the defendants. The court erred in refusing plaintiff's conclusions of law, number 1 as well as number 2. Authorities cited under Points 1-5. (7) The court erred in giving each one of the findings of fact given for respondent. Authorities cited under Points 1-5.

Atwood, Wickersham & Chilcott for respondent.

(1) The motion for new trial is insufficient to present any matter for review by this court. Municipal Securities Corp. v. Kansas City, 265 Mo. 252; Ward v. Western Union Tel. Co., 46 S.W.2d 268; Williams v. Jenkins, 32 S.W.2d 580; Wampler v. Ry. Co., 269 Mo. 464; Belcher v. Haddix, 44 S.W.2d 177; Waters v. Gallemore, 41 S.W.2d 870. (2) There was no sale; the automobiles were merely held upon consignment, title always remaining in the Gardner Motor Company, Inc.; the relation between the Gardner Motor Company, Inc., and the Motor Brokerage Sales Company was that of factor and principal and the factor had no legal right to mortgage the automobiles; the law does not require these trust receipts to be recorded. State ex rel. v. Thompson, 120 Mo. 20; Ferd Heim Brewing Co. v. Linck, 51 Mo.App. 478; Packard Piano Co. v. William, 167 Mo.App. 515; Peet v. Spencer, 90 Mo. 384; Gilbert Book Co. v. Sheridan, 114 Mo.App. 332; Weir Plow Co. v. Porter, 82 Mo. 23; Kingman Plow Co. v. Joyce, 194 Mo.App. 367; Cable Co. v. Elliott, 203 S.W. 211; Wheeler & Wilson v. Givan, 65 Mo. 89; Union Bank of Trenton v. First. Natl. Bank of Milan, 64 Mo.App. 253; Platt v. Francis, 247 Mo. 296; Worthington v. Vette, 77 Mo.App. 449; Reinhart Grocery Co. v. Knuckles, 172 Mo.App. 627; Miller v. People's Savings Bank, 193 Mo.App. 498; 2 C. J. 652; Singer Mfg. Co. v. Hudson, 4 Mo.App. 147; General Electric Co. v. Commercial Electrical Supply Co., 191 S.W. 1106; Stein Cushion Tire Co. v. Fulton Co., 159 S.W. 1013; Renfroe v. Hall, 202 S.W. 218; Chase-Hackley Piano Co. v. Clymer, 202 S.W. 214; Van Arsdale v. Peacock, 90 Kan. 347; McKinney v. Grant, 76 Kan. 779; Renoe v. Western Star Milling Co., 53 Kan. 255; Columbus Buggy Co., 143 F. 859.

OPINION

Hays, J.

Gardner Motor Company, Inc., of the city of St. Louis, a manufacturer of automobiles, delivered products of its factory from time to time to Motor Brokerage Sales Company (which by change of name became Gardner-Paup Motors, Inc., and for brevity will be referred to as sales company), as distributor in the Kansas City trade territory, and as local dealer in automobiles at Kansas City. This action involves five of such cars, each delivered and received under so-called trust receipts. Some time after such delivery the sales company, without benefit to and without the knowledge or consent of the Gardner Company, gave the plaintiff, Globe Securities Company, chattel mortgages on these particular cars to secure various sums of money borrowed thereon, the instruments being in conventional form and authorizing the mortgagee to take possession of the property on default and sell same to pay the indebtedness secured. The mortgagor defaulted in its payments, and the Gardner Company, upon its first information of the existence of the mortgages, asserted its claimed right of absolute ownership and title to the cars by repossessing and taking them to its factory in St. Louis, where it retained them against the plaintiff's demand therefor, and plaintiff's asserted right to possession thereof and of superior title thereto under said mortgages. Whereupon this action was brought as for trover and conversion.

In a trial before the circuit court without a jury the defendants (respondents here) prevailed, and from the judgment the plaintiff appealed. The value of the property involved, as well as the amount of damages prayed, gives this court jurisdiction of the appeal. The pleadings embraced the issues which were tried and...