Harrington v. Interstate Securities Co., 17574.

• Decision Date: 06 February 1933
• Docket Number: No. 17574.,17574.
• Citation: 57 S.W.2d 438
• Parties: HARRINGTON v. INTERSTATE SECURITIES CO.
• Court: Missouri Court of Appeals

57 S.W.2d 438

HARRINGTON v. INTERSTATE SECURITIES CO.

No. 17574.

Kansas City Court of Appeals. Missouri.

February 6, 1933.

Appeal from Circuit Court, Jackson County; Jerome Walsh, Special Judge.

"Not to be published in State Reports."

Suit by J. C. Harrington against the Interstate Securities Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Jenkins & Vance, of Kansas City, for appellant.

Burns & White, of Kansas City, for respondent.

TRIMBLE, Presiding Judge.

The appeal herein is from a judgment in a replevin suit to obtain possession of a certain new Dodge truck purchased by one Edward J. Blickham, February 22, 1929, of the Dial-Walsh Motor Company.

It seems that Blickham had given respondent Harrington a chattel mortgage on an old truck. Thereafter Blickham sought to purchase a new truck of the aforesaid motor company, and wanted to trade in his old one on the purchase of the new; but, before the motor company would agree to this, it insisted that the mortgage on the old truck be cleared. Blickham conferred with Harrington about this, and, as a result, Harrington consented to release his mortgage on the old truck, and take a mortgage upon the new one; Blickham was also to execute a chattel mortgage on the new truck for the balance of the purchase price due to Dial-Walsh Motor Company. Blickham executed the two mortgages on the new truck February 22, 1929. The motor company's chattel mortgage was filed for record in the office of the recorder of deeds for Jackson county, where Blickham resided, on February 23, 1929, at 9 o'clock a. m. and was numbered C. 661920, and at the same hour respondent Harrington's mortgage was also filed and numbered C. 662049. Harrington's mortgage, formerly on the old truck but now on the new one, was for $271, and the seller, Dial-Walsh Motor Company's mortgage was for $837.18, the remaining unpaid purchase money for the new truck. Said company thereafter sold and transferred said note and mortgage to the appellant herein, Interstate Securities Company.

Apparently, Blickham failed to pay on either of said notes, and the securities company took possession of said new truck as a necessary step toward foreclosure of the mortgage it purchased of the motor company. Thereupon, Harrington, holder of the chattel mortgage taken off of the old truck and placed on the new, brought this replevin suit to take the mortgaged new truck out of defendant's possession, on the ground that his (Harrington's) chattel mortgage is the first and prior lien, while the securities company insists that its mortgage purchased from the motor company is first and prior.

In the trial court, verdict and judgment went in favor of plaintiff, and defendant has appealed.

The record brought to this court is very meager. That brought up by appellant merely discloses the evidence of the chief deputy in the recorder's office; while that furnished by respondent is equally scanty; being only plaintiff's evidence in narrative form which agrees with the facts as hereinbefore stated, and especially that part which shows that plaintiff held a mortgage for $271 on the old truck, and that Blickham desired to trade said old truck in on a new one, and, to enable him to do this, "plaintiff agreed to take a mortgage on the new truck in lieu of the one which he held on the old truck."

Plaintiff does not anywhere say he did not know that Blickham was to give a mortgage to the motor company for any unpaid balance of the purchase money of the new. There is no dispute as to what the two mortgages show as to the time of filing in the recorder's office. But it seems to say, or intimate, when Campbell (some undisclosed employee of the motor company), handed him (plaintiff) his chattel mortgage, the employee told him "it was a first mortgage," and he took it and filed it in the recorder's office, and returned to the motor company in company with Blickham, where Blickham signed his mortgage to the motor company, and then plaintiff and Blickham rode together, in the new truck which Blickham obtained, to the courthouse.

The deputy recorder, hereinbefore mentioned, who testified as a witness for defendant was not allowed by the court to testify "which mortgage went on file first," on the ground that this was a conclusion; later in the examination, however, when asked which mortgage was filed first, he testified that mortgage numbered 661920 was filed...