Grand Avenue Bank v. St. Louis Union Trust Co.

• Decision Date: 26 January 1909
• Parties: GRAND AVENUE BANK, Respondent, v. ST. LOUIS UNION TRUST COMPANY et al., Appellants
• Court: Missouri Court of Appeals

115 S.W. 1071

135 Mo.App. 366

GRAND AVENUE BANK, Respondent, v. ST. LOUIS UNION TRUST COMPANY et al., Appellants

Court of Appeals of Missouri, St. Louis

January 26, 1909

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Virgil Rule, Judge.

AFFIRMED.

STATEMENT.--This action was begun to recover from defendant, in its own capacity and as trustee under a deed of general assignment the proceeds of sixteen pianos conveyed by said deed and afterwards sold by defendant. Prior to May 22, 1907, John Feld was a piano dealer in St. Louis. His salesrooms were in the Odeon building on Grand avenue, and his storage room at No. 3505 Easton avenue. On said date he failed for some forty thousand dollars, with assets of about thirty thousand dollars, he estimated. These assets, including the sixteen pianos in dispute in the present controversy, he conveyed by a general deed of trust to the St. Louis Union Trust Company on the date mentioned, to secure his various creditors in proportion to their demands. On March 28, 1907, two months before the execution of the deed of trust, Feld had borrowed from plaintiff bank $ 1,600 on a promissory note. The money was lent on the credit of the sixteen pianos which were then in Feld's storage room on Easton avenue, and the note was accompanied by documents constituting a written assignment in pledge of the pianos, which were described and their numbers and locations given. The documents follow:

"EXHIBIT A.

"St Louis, March 28, 1907.

"For and in consideration of a loan of $ 1,600.00, made to me this day by the Grand Avenue Bank of St. Louis, I, John Feld, the owner of the following instruments located at 3505 Easton avenue, do hereby pledge to the said Grand Avenue Bank the following pianos, to-wit:"

Here follows list of pianos.

"It is hereby agreed that these pianos can be removed from the above given address by payment of the amount set opposite these pianos herewith and by written order signed by some officer of the said Grand Avenue Bank. I agree to keep the above mentioned pianos insured against loss by fire and assign the policies over to the said Grand Avenue Bank. I further agree to stand the loss in the event any or all pianos are stolen.

JOHN FELD.

"J. HENRY KRIEKEMEIER, witness."

EXHIBIT B.

"St Louis, March 28, 1907.

$ 1,600.00.

"On demand after date I promise to pay to the order of the Grand Avenue Bank of St. Louis, Sixteen hundred and no-100 Dollars, for value received, with interest at the rate of 7 per cent from date, payable at the office of Grand Avenue Bank of St. Louis.

JOHN FELD,

"Odeon, Grand and Finney Aves.

"Having executed a promissory note dated at St. Louis, Missouri, on the 28th of March, 1907, for $ 1,600, payable to the Grand Avenue Bank of St. Louis, or order, on demand after date, with interest from date at the rate of seven per cent per annum; and being desirous of securing the same, and all my other liabilities actual and contingent, to said bank, now existing, or which may hereafter arise, I do hereby pledge to said Bank and to its successors as collateral security for said note and said other liabilities to said bank the following described property: Sixteen pianos located at 3505 Easton avenue, as per attached slip; also agreement signed under this date.

"The present market value of which is $ . . . . of which I am in good faith the owner, the same being fully paid for and free from liens or claims of any kind whatever; and I agree to give additional security to keep up the present margin whenever the market value of the above collateral should decline, and upon notice so to do from the holder of the above note referred to. In default of payment of said note or other of my said liabilities at maturity, or in default of my giving such additional security within twenty-four hours after demand made on me for the same, or in case of my suspension, failure or insolvency, or the commission of any act of insolvency on my part, said bank shall, in addition to the foregoing collateral, have a lien on all notes, drafts, bills receivable or moneys held by or in transit to said bank in my name or for my account, the same to be deemed to have been assigned to said bank as additional collateral for the payment of said note, and all other of my said liabilities, actual and contingent; said bank and its successors to have the option of application of any or all of said collaterals before sale, or of the proceeds thereof after sale, upon any, either or all of said liabilities as it or they may elect; and upon such default being made, I do hereby authorize said bank by any of its officers or agents, or its successors, to sell or cause to be sold any or all of said collaterals or any substitutes therefor or additions thereto, at public sale, upon such notice, at such place and on such terms as said bank or its successors may deem proper, or at private sale, without notice, if said bank or its successors shall elect to sell, at private sale, and to apply the proceeds, whether of such public sale or private sale; First. To the payment of the expenses incurred in making said sale, including reasonable compensation to said bank, in case the holder of said note is, at the time of making such sale, some one other than the said bank; and, next, to the discharge of the note above mentioned, and, next, to the discharge of all my other liabilities to said bank as hereinbefore set out; any surplus left shall be paid to me. If the proceeds of such sale are not sufficient to pay all my liabilities hereby secured, I agree to pay the balance on demand. In case of a sale of said collaterals, said bank or the holder of any liability hereby secured, may become the purchaser thereof, without any right of redemption on my part.

"Notice delivered at or mailed to my last known place of business or residence shall constitute due notice for additional security.

"JOHN FELD.

"Odeon, Grand and Finney Aves."

Besides those papers, the following so-called warehouse receipt was signed by Feld and delivered to an officer of the bank when the note was executed:

EXHIBIT C.

"St. Louis, Mo., March 1, 1907.

"Received at 3505 Easton avenue, the following described pianos, to-wit:

Majestic

5297 D. Wal.

155

Mason

68383 Wal.

151

Cecilian

10094 Mah. P. P.

283

John Feld 75223 Mah. 135.

John Feld 75214 Mah.

John Feld 75130 Wal.

John Feld 75232 Wal.

John Feld 75124 Mah. 8 large.

John Feld 75125 Oak 5 small to.

John Feld 69802 Oak 145.

John Feld 69797 Oak.

John Feld 75149 Mah.

John Feld 72367 Mah.

John Feld 75126 Mah.

John Feld 75123 Mah.

John Feld 73131 Mah.

"These pianos are in my possession now and held subject to the orders of John Feld, owner thereof.

WM. A MUERER.

"For value received deliver to order of Grand Avenue Bank.

"JOHN FELD.

"WM. A. MUERER."

The signature of Wm. A. Muerer to the last paper was not affixed when it was executed by Feld but later, yet prior to the date of the assignment by Feld to defendant. The significance of Muerer's signature will appear from facts infra. This controversy turns on whether or not there was such an actual or constructive delivery of the pianos to plaintiff in pledging them, as sufficed to pass the title to the bank against the St. Louis Union Trust Company claiming under the deed of trust executed two months afterward, followed by assumption of possession of the property. Muerer worked as a piano repairer in Feld's storage room on Easton avenue as an employee of the latter, in whose service he continued until Feld failed. He did his repair work in the end of the storage room. Testimony for the bank goes to prove its officers did not know the relation in which Muerer stood to Feld, but supposed he was in charge of the storeroom or warehouse on Easton avenue on his own account, as there were no signs on the building bearing Feld's name or other indication the premises were his. According to the testimony of those officers, when the loan was made, Mr. Nichols, cashier of the bank, was taken by Feld to 3505 Easton avenue, Feld stating they would go there and he (Feld) would turn the pianos over to the bank. Nichols said he had a list of those shown in the warehouse or storage receipt and that he took possession of the pianos in a formal way: "The sixteen pianos pledged were brought out by Mr. Feld and Mr. Muerer, and the tops were opened and I saw the number and the make of each piano and the cover." He said he saw the descriptions, checked off the numbers on the receipt, and when he had finished walked back where Muerer was doing repair work. Nichols told Muerer to keep an eye on the sixteen pledged pianos. Feld told him Muerer did his (Feld's) repairing but did not say the storage room was his (Feld's); that he (Nichols) went to the storage room to take possession of the pianos for the bank pursuant to an order of its president. He said further Feld stated to Muerer in his presence that he (Nichols) had come out to receive the pianos for the bank. The vice-president of the bank, O. L. Brown, testified that when the loan was made he requested the pianos be removed to the Leonori warehouse; but Feld objected, saying it was unnecessary as the bank would have the same right where they were and to move them would cost $ 150; that a man was in charge of the building where they were who would be responsible for everything. Brown asked for the keys of the building, and Feld said the bank could have the keys but the banking hours did not agree with Muerer's. Feld tendered the keys to Brown, who did not take them because Muerer might need them at hours the bank was not open, whereby he would be inconvenienced. Brown also said he had no thought of Muerer being in...