James v. Butcher

• Decision Date: 10 November 1919
• Docket Number: No. 13335.,13335.
• Citation: 215 S.W. 767
• Parties: JAMES v. BUTCHER et al.
• Court: Missouri Court of Appeals

215 S.W. 767

JAMES v. BUTCHER et al.

No. 13335.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

Appeal from Circuit Court, Buchanan County; William H. Utz, Judge.

"Not to be officially published."

Suit by Max James against Jacob Butcher and Morris Rockever. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals. Reversed and remanded, with directions to reinstate verdict.

James C. Growney, of St. Joseph, for appellant.

Sherman & Otis, of St. Joseph, for respondents.

BLAND, J.

This is a suit in replevin. Plaintiff, being the owner and in possession of certain shoe repairing machinery and tools, sold the same to the defendants. None of the purchase price was paid in cash. Defendants gave plaintiff a note or contract covering the price, payable in installments. This note was secured by a chattel mortgage providing that the mortgagee should be entitled to take possession of the property in case of default in payment of the debt and interest, or any part thereof, or in case of a removal or an attempt to remove the goods from the premises where the mortgaged property should be kept, or in case of any unreasonable depreciation of the goods.

Plaintiff claims that there has been a default in the mortgage in all three respects, and filed this suit in replevin, resulting in a verdict in his favor. The court granted a new trial, assigning as the reason therefor that an error was committed in the giving of plaintiff's instruction No. 1. There is no question but that there is evidence tending to show that the goods had been removed from the premises, and that by reason of acts of the defendants it had depreciated. However, defendants claim that there was no default in the payment of the note; that, in fact, the payments had been overmet by work and labor done by defendants for plaintiff at the time this suit was brought.

Plaintiff's instruction No. 1, which it is claimed was erroneous, submitted to the jury the question as to whether there had been default in the payment of the debt. The court was of the opinion that there was no evidence upon which such an issue could be submitted, and therefore granted a new trial. However, we find that in defendants' instruction No. 1 the jury were told:

"That their verdict should be for the defendants in this case, if you find and believe from the evidence that the defendants made no default in the payment upon the machinery described in evidence, and were not in default at the time plaintiff took said machinery from the possession of defendants," etc.

There was no demurrer to the evidence filed at any stage of the proceeding, and as defendants submitted the issue as to whether there had been a default in...