Ingersoll Co. v. Belt, 18039.

• Decision Date: 30 April 1934
• Docket Number: No. 18039.,18039.
• Citation: 71 S.W.2d 118
• Parties: INGERSOLL CO. v. BELT et al.
• Court: Missouri Court of Appeals

71 S.W.2d 118

INGERSOLL CO. v. BELT et al.

No. 18039.

Kansas City Court of Appeals. Missouri.

April 30, 1934.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

"Not to be reported in State Reports."

Suit by the Ingersoll Company against Edward O. Belt, surviving partner of Belt & Schifferdecker, a copartnership, the J. I. Case Company, and others. From an adverse judgment, second named defendant appeals.

Affirmed.

McCollum, Schwind & Barnes, of Kansas City, for appellant.

S. J. & G. C. Jones, of Carrollton, for respondent.

TRIMBLE, Judge.

This suit was brought by plaintiff, Ingersoll Company, a corporation, as assignee of certain notes aggregating $1,166, secured by chattel mortgage of Charles F. and Ray Lynn on certain wheat "now growing" on 550 acres hereinafter described, to recover the proceeds of the harvested and sold wheat still remaining in the hands of the partnership firm of Belt & Schifferdecker. It is in the nature of a suit in conversion, but the petition asks the court to ascertain the rights and interests of all parties in said remaining proceeds and adjudge the amount due each.

The suit was filed December 11, 1931. Prior to this, and on November 11, 1931, Schifferdecker died, and the surviving partner, Belt, qualified and took charge of said firm's assets. Belt, as such surviving partner, filed answer, setting up that the firm was requested by all parties interested in the wheat grown and harvested to allow the same to be shipped and sold in the firm's name, which was done; and said firm received the proceeds thereof, and certain sums were paid out by "mutual consent," including $758.81 paid to appellant J. I. Case Company, under a bond given by it to return the same if it were adjudged not to be entitled thereto; that there was still in the hands of said defendant Belt the sum of $570.60 which belonged to various named parties as their interests may appear, but in unknown proportions, which said defendant was unable to determine; that he has no interest in said fund, and prayed the court to compel the said parties, including plaintiff, to interplead for same, and offered to pay said above-named sum (together with the $758.81 heretofore paid to J. I. Case Company) to whomever may be adjudged to be entitled to the same; and said defendant then prayed to be allowed a reasonable attorney fee and to be thereafter discharged with his costs.

Defendants Ben W. Kinsey and Charles F. Hurburgh each filed their separate entry of appearance and set up their respective claims on the fund, the first named for $23 and the latter for $255.62, on the ground that they were owners of certain respective portions of the land on which the wheat was grown.

It is perhaps well to here state that the notes and chattel mortgage, under which plaintiff claims, were given by the aforesaid Lynns to defendant Whitenack on October 28, 1930, which chattel mortgage described the property conveyed, in so far as material, as follows:

"The following described personal property, all of which is free from any other lien or encumbrance whatever, and is now our absolute property and in our possession on what is known as a part of the Baldwin Ranch, situate in Sections twenty-three (23), twenty-four (24), twenty-five (25), and twenty-six (26), in Township No. fifty-two (52) of Range twenty-six (26), in Ray County, Missouri, and in Section thirty (30) in Egypt Township No. fifty-two (52) of Range twenty-five (25) in Carroll County, Missouri, said tract of land comprising about One Thousand (1000) acres and now owned by S. H. Whitenack, Jr., and there being no other property of like kind character or description now owned or controlled by us, to wit:

"All our one-half (½) interest in all the wheat now sown and growing on the above described land, said wheat land comprising about 550 acres. * * *

"Subject, however, to a first mortgage on two hundred (200) acres of the above described wheat, given to the J. I. Case Company, to secure a note in the principal sum of Seven Hundred Dollars ($700.00)."

Said chattel mortgage, duly acknowledged, was filed and recorded in the office of the recorder of deeds in Carroll county on November 24, 1930, and in the same office of Ray county on November 28, 1930. And the secured notes, aggregating $1,166 as heretofore stated, were assigned for value to plaintiff without notice and before maturity.

It was stipulated at the trial that, in a foreclosure of this mortgage as to other property therein, plaintiff received $461. This stipulation was agreed to, subject to plaintiff's objection and contention that it was not competent under the pleadings. We fail to see how it makes any difference, since it had no effect on what interest plaintiff had in the proceeds of the wheat money then or theretofore in the hands of Belt.

The trial court, after hearing the evidence, rendered a judgment or decree finding that defendant Belt has in his hands $570.60, the residue of...