Jackson v. Rothschild

• Decision Date: 28 December 1936
• Docket Number: No. 5707.,5707.
• Citation: 99 S.W.2d 859
• Parties: JACKSON v. ROTHSCHILD et al.
• Court: Missouri Court of Appeals

99 S.W.2d 859

JACKSON v. ROTHSCHILD et al.

No. 5707.

Springfield Court of Appeals. Missouri.

December 28, 1936.

Appeal from Circuit Court, Jasper County; Ray E. Watson, Judge.

"Not to be reported in State Reports."

Action by W. M. Jackson against Lee Rothschild, doing business as the Rothschild Iron & Metal Company, and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

Ben F. Putnam and John J. Wolfe, both of Joplin, for appellant.

Burton W. Arnold, Mercer Arnold, and Charles R. Warden, all of Joplin, for respondents.

ALLEN, Presiding Judge.

The petition in this action was filed in the circuit court of Jasper county, Mo, on August 31, 1934. When the case came to trial, W. M. Jackson was plaintiff and Lee Rothschild, doing business as Rothschild Iron & Metal Company, and Harold Jones were defendants. Trial was had in the circuit court of Jasper county at the September term, 1934.

Appellant in his amended petition alleged that in May, 1934, he owned and possessed certain machinery, named in the petition; that said machinery was then of the value of $1,000; that respondents had unlawfully converted said chattels to their own use.

Respondent's answer was in the form of a general denial. A jury was waived and the cause submitted to the judge of said court.

Appellant testified on direct examination that in May, 1934, he was the owner and in possession of a mill located at Carthage, Mo.; that on or about said date he was informed that the machinery had been removed from the mill to the place of business of the Rothschild Iron & Metal Company.

Appellant also testified that respondent Jones had purchased the machinery from the Carthage Marble Quarry Company, and that it in turn had sold it to respondents; that no one was interested in the plant except himself. He further testified that he did not own or pay rent on the land on which the machinery was located but that he had owned the land at one time, and had sold it with the provision that the machinery could remain there until "we got ready to use it somewhere else"; that part of the machinery had been purchased by him about ten years previous; that he had mortgaged that part of the machinery at one time and that he was in default in the payment of the mortgage at the time of the alleged conversion, but the note which the mortgage secured had been paid in September or October, 1934; that there were other people in with him at the time the mill was built; that the other people were the Producers' Gravel Company, a corporation, the charter to which was forfeited in 1933; that the Producers' Gravel Company sold the ground and part of the machinery to a Dr. Koch; that the balance of the machinery was taken over by him (appellant); that the company owed him money when he took over the machinery in 1930 or 1931.

Appellant further testified that there was probably no resolution passed by the board of directors whereby consent was given appellant to take over the property.

At the close of appellant's case respondents moved the court to declare the verdict of the court, as a matter of law, under the pleadings and evidence, the court sitting as a jury, to be in favor of respondents. This motion was sustained by the court. The court found the facts to be that appellant showed neither ownership nor possession.

Motion for new trial was filed but overruled, and the case comes to this court on appeal by plaintiff.

Appellant submits that the only point of controversy is whether or not the plaintiff's evidence showed sufficient title to said machinery or possession thereof to maintain an action for conversion against the defendants, who appellant alleges took and moved away the property without any right or title to same.

Appellant's petition alleges that he was lawfully possessed of his own property, the machinery in question. The evidence shows that appellant and several other individuals formed a corporation about the year 1925, said corporation being known as the "Producers' Gravel Company." Used machinery was purchased by the corporation for the purpose of constructing a mill. In 1933 the charter of the corporation was forfeited. The land on which the mill stood and part of the machinery, comprising the mill, was sold to a Dr. Koch. The balance of the machinery was "taken over" by appellant, purportedly in settlement of a debt owed him by the corporation. There was no resolution passed by the board of directors to the effect that the property should be transferred to appellant. Appellant was not deeded the machinery and at no time did he exercise any control over it. The most that he did was to go out to where the machinery was located and look at it a few times.

Respondents contend that appellant had neither the title to, the right of possession in,...