Guthrel v. Guthrel

• Decision Date: 29 November 1910
• Citation: 153 Mo. App. 214,132 S.W. 274
• Parties: GUTHREL v. GUTHREL et al.
• Court: Missouri Court of Appeals

132 S.W. 274

153 Mo. App. 214

GUTHREL v. GUTHREL et al.

St. Louis Court of Appeals. Missouri.

November 29, 1910.

1. TRIAL (§ 143) — CONFLICTING EVIDENCE— QUESTION FOR JURY.

Where the testimony of a party is conflicting with itself, and his testimony is the sole testimony in the case, the question which version of the transaction given by him is correct is for the jury.

2. CHATTEL MORTGAGES (§ 190)—VALIDITY AS TO CREDITORS.

A mortgage of a stock of merchandise and fixtures is void as to creditors of the mortgagor, where a secret agreement between the mortgagor and mortgagee permits the mortgagor to make sales of the mortgaged chattels without accounting to the mortgagee for the proceeds.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by John Guthrel against William E. Guthrel and another. From a judgment for plaintiff, defendant Frank M. Slater appeals. Affirmed.

Henry B. Davis, for appellant. Charles H. Brock, for respondent.

REYNOLDS, P. J.

This is an action in replevin, originally brought by plaintiff before a justice of the peace in the city of St. Louis, to recover certain property claimed by him, the property then being in the hands of the defendant Slater, under an execution issued against defendant William E. Guthrel, on a judgment against him in favor of one Cohen. On appeal to the circuit court and a trial there before the court and a jury, it appeared that the plaintiff held a chattel mortgage securing a note; the note being signed and chattel mortgage executed and properly acknowledged by William E. Guthrel, and duly recorded. It appears that the action by Cohen against William E. Guthrel was by attachment, but that the constable was in possession of the property under general execution. The only testimony in the case beyond the chattel mortgage and agreement of facts as to the aforesaid judgment, execution, levy, and possession of the property by Slater as constable at the time it was replevied in this action was that of the plaintiff John Guthrel. His testimony appears to be conflicting, and not very consistent in itself, but we gather from it that he was a manufacturer's agent, selling furniture by sample; that he had samples of the goods that he was selling in a store of his own and apparently had some other furniture in the store outside of the samples; that the mode of conducting the business was to show the samples to prospective customers, and, if they purchased, plaintiff sent in the order to the manufacturer and the goods were furnished from the latter establishment, the samples always remaining in John Guthrel's possession unsold. He sold out his business to William E. Guthrel about March 9, 1908, the sale covering these samples, and also, as it is claimed, some other goods and fixtures, at the same time taking from William the note and mortgage. In one part of his testimony John Guthrel denies authorizing William to sell any of the goods covered by the mortgage, but further along his testimony is subject to the contention of appellant that he seems to admit that he sold to William E. Guthrel some articles other than the samples and not in the mortgage, which other articles William E. Guthrel was authorized to sell. But this is not very clear. It is pretty clear that the articles replevied were those covered by the mortgage.

The court, in its instructions to the jury, among other things, told the jury that plaintiff had a right to recover possession of the property referred to in the chattel mortgage, unless they found "that some personal property situated in the store No. 2251 S. Grand avenue, in possession of Wm. E. Guthrel at the date of said mortgage was agreed to be excluded from the terms of said mortgage, as in other instructions...