Grinnell Co. v. Farm & Home Savings & Loan Ass'n

• Decision Date: 02 October 1934
• Docket Number: No. 5358.,5358.
• Parties: GRINNELL CO., Inc., v. FARM & HOME SAVINGS & LOAN ASS'N et al.
• Court: Missouri Court of Appeals

75 S.W.2d 409

GRINNELL CO., Inc., v. FARM & HOME SAVINGS & LOAN ASS'N et al.

No. 5358.

Springfield Court of Appeals. Missouri.

October 2, 1934.

Rehearing Denied November 9, 1934.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

Suit by the Grinnell Company, Incorporated, against the Farm & Home Savings & Loan Association and the Menzies Shoe Company. From a judgment for plaintiff against last-named defendant, such defendant appeals.

Affirmed.

Edward K. Schwartz, of St. Louis, for appellant.

Howard Gray, of Carthage, and Wilder Lucas, of St. Louis, for respondent.

SMITH, Judge.

The present suit was originally instituted in Vernon county, and upon change of venue was transferred to Jasper county, where it was tried. The issues were made up by plaintiff's petition, defendants' amended answer, and plaintiff's reply thereto. The pleadings are set out in full by us in a companion case appealed to this court and opinion handed down by us at this term of court. It is case No. 5357, 74 S.W.(2d) 1097, by the same parties, tried at the same term of court and before the same chancellor, but in which case the plaintiff, Grinnell Company, Inc., was the appellant and the Farm & Home Savings & Loan Association was the respondent.

By referring to our opinion in that case the entire pleadings and the court's judgment may be seen, so we do not set them out here. It may be seen that judgment was rendered against the Menzies Shoe Company in favor of Grinnell Company, Inc., for the sum of $2,617.84, the balance due on the sprinkler system, but did not sustain the lien sought in that suit. The chancellor found in that judgment that the sprinkler system involved was so installed as to become a part of the real estate and passed with the other realty to the Farm & Home Savings & Loan Association. That part of the judgment we affirmed in the above-mentioned case No. 5357.

This case is before us on the part of the judgment rendered against Menzies Shoe Company for $2,617.84. The shoe company is presenting its appeal on several assignments of error which we shall consider together with such of the facts as we may deem necessary.

The first assignment of error as stated by this appellant is as follows: "The Court erred in overruling defendant Menzies Shoe Company's objection to the jurisdiction of the Court over the subject matter, on the ground that the title to real estate being involved the suit was in the beginning filed in the wrong jurisdiction, and the trial court acquired none on change of venue."

We think there is no merit to the above contention. The suit as filed against defendant Menzies Shoe Company, a foreign corporation, was an equitable proceeding to foreclose a lien against what the plaintiff termed personal property. The defendants' answer did not in any way allege that title to real estate is involved. The answer denied generally the allegations of the plaintiff, and pleaded a discharge by reason of a composition with its creditors after a proceeding in bankruptcy had been filed against it. The question was raised by an oral objection at the beginning of taking testimony. An objection that the court has no jurisdiction of the person of defendant or of the subject-matter is a matter to be pleaded in abatement, which was not done in this instance. Reference to the answer clearly shows this was not pleaded. Curfman v. Fidelity & Deposit Co. of Maryland, 167 Mo. App. 507, 152 S. W. 126.

The defendant Farm & Home Savings & Loan Association contended that the personal property had been so installed as to become a part of the realty. There was never any question as to the title to the realty involved. The question as to where the title to the realty was, if in fact it was realty, was never raised.

The question at issue in that trial was as to the equitable lien upon personalty, and right to possession. The result of the judgment in this cause does not and cannot affect the title to the lands mentioned in the pleadings. The receiver for the defendant Farm & Home Savings & Loan Association had possession of the property involved in this suit, and his appointment as receiver was made at Nevada, Mo., and the suit was properly commenced in the county where that defendant resides, and where his appointment as receiver was made. Section 722, R. S. Mo. 1929 (Mo. St. Ann. § 722, p. 934); Baker v. Farmers' Bank of Conway, 220 Mo. App. 85, 90, 279 S. W. 428.

As we held in the former opinion, case No. 5357, the relation existing between the plaintiff in each of these cases and the defendant here and the Loan Association is entirely different. The plaintiff and the defendant in this branch of the case certainly could contract so that the sprinkler system would be considered as personalty, but they could not bind third parties by such a contract otherwise than upon strict compliance with the law with reference to notice and the proper recording of said notice (Mo. St. Ann. § 3125, p. 1963). Kolb v. Golden Rule Baking Co., 222 Mo. App. 1068, 9 S.W.(2d) 840, 844; General Motors Acceptance Corporation v. Farm & Home, etc., Ass'n, 227 Mo. App. 832, 58 S.W.(2d) 338, loc. cit. 345.

The second assignment is as follows: "The court erred in finding that there had been a reviver of the obligation after the confirmation of the composition in bankruptcy had discharged the same." It insists that as to this, the plaintiff had the burden of proof.

We think the evidence shows that the plaintiff sustained the burden of proof as to this point. Two witnesses for the plaintiff testified positively that they made arrangements with Mr. Nichols, president of Menzies Shoe Company, for payments to be made on the Chillicothe system subsequent to the bankruptcy proceedings. The testimony of plaintiff's witness Mr. Conley was to the effect that he came to St. Louis in answer to a letter of January 16, 1930, and had a talk with Mr. Nichols on January 20, 1930, wherein Mr. Nichols stated that the trustees at Carbondale, who had taken over this plant pursuant to the judgment of the Illinois court, were interested in taking over that sprinkler system; and that he could pay only $100 per month on the other two contracts, to wit, Chillicothe and New London; that thereupon Mr. Conley went to Carbondale, saw the trustee, who informed him that appellant had no...