Jerome P. Parker-Harris Company v. Stephens
| Decision Date | 10 August 1920 |
| Citation | 224 S.W. 1036,205 Mo.App. 373 |
| Parties | JEROME P. PARKER-HARRIS COMPANY, Appellant, v. J. W. STEPHENS, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Pemiscot County.--Hon. Sterling H McCarty, Judge.
REVERSED AND REMANDED (with directions.)
Cause reversed and remanded.
E. L Westbrook and Ward & Reeves for appellant.
(1) At common law a verbal conditional sale contract was good, not only as between the original parties, but also as to innocent purchasers and creditors of the conditional vendee. This rule of law obtained in all the states, including Missouri, except possibly Illinois, and is also the Federal Rule. Harkness v. Russell, 118 U.S. 663 (); Houston v. Dyche, Meigs (Tenn.), 76; Gambling v Read, Meigs (Tenn.), 281; Buson v. Dougherty, 11 Hum. (Tenn.) 52; Burke v. Harrison, 5 Sneed (Tenn.) 237; Price v. Jones, 3 Head (Tenn.) 84; Cronan v. Honor, 10 Heis. (Tenn.) 534 Association v. Owen, 2 Pickle (Tenn.) 362; Parmlee v. Catherwood et al., 36 Mo. 479; Little v. Page, 44 Mo. 412; Ridgeway et al. v. Kennedy et al., 52 Mo. 24; Robbins v. Phillips, 68 Mo. 100; Wangler v. Franklin, 70 Mo. 659; Sumner v. Cottey, 71 Mo. 121; Kingsland-Ferguson Mfg. Co. v. Culp, 85 Mo. 548; Buggy Co. v. Woodson, 59 Mo.App. 550. (2) Such conditional sales are now (since 1899) required by the laws of Tennessee (offered in evidence) to be evidenced by a written contract or memorandum, but such contract or memorandum is not required by the laws of that State to be recorded and the contract (without recording) is good against subsequent purchasers and creditors of the conditional vendee. Bradshaw v. Thomas, 7 Yers. 497; Tatum v. Jameson, 2 Hum. 298; Tedford v. Wilson, 3 Head, 313; McCombs v. Guyld, 9 Lea, 81; Mfg. Co. v. Nordeman, 10 Cates, 384; Harrison v. Weinstein, 3 Tenn. Civ. App. 217; Wilder v. Wilson, 16 Lea, 552; Taylor v. Pope, 5 Cold. 416; Huffman v. Hughlett, Lea, 554; Guano Co. v. Hunt, 16 Pickle, 94; Bethel v. Bank, 17 Pickle, 132. (3) Notwithstanding our statute requiring chattel mortgages to be filed or recorded in this State, a chattel mortgage duly executed by citizens of a sister State on property located in such State, and recorded there, but not recorded here, will be given full force and effect in this State, even though the mortgagee has transferred the property in this State to an innocent purchaser without actual notice or knowledge of the existence of the chattel mortgage. Geiser Mfg. Co. v. Todd, 204 S.W. (Mo. App.) 287; Smith v. Hutchings, 30 Mo. 380; Feurt v. Rowell, 62 Mo. 524; National Bank of Commerce v. Morris 114 Mo. 255; Brown v. Koenig, 99 Mo.App. 653; LaFayette County Bank v. Metcalf, Moore & Co., 40 Mo.App. 501; Bank v. Cassidy, 71 Mo.App. 186; Tremian v. Dyotter, 161 Mo.App. 217; Liebing v. Mutual Life Ins. Co., 276 Mo. 118. (4) While we are unable to find a Missouri authority touching the validity of a conditional sale contract duly executed in another State, we insist the same principle of law applicable to a chattel mortgage is likewise applicable to conditional sale contracts, and this has been generally so held in all the States where the question has arisen. 64 L.R.A., note, subdivision (d), 833 (and authorities there reviewed); Studebaker Brothers v. Mau, 110 Am. St. Rep. (Wyoming) 1001; Adams v. Fellows (S. C.), 70 S.E. 722; Wharton on Conflict of Laws, sec. 355; Elliott on Contracts, secs. 1154 and 1155; 22 Am. & Eng. Ency. of L., p. 1341.
Mayes & Gossom for respondent.
(1) A conditional sale contract is required to be recorded in this State in order to be valid against creditors and purchasers in good faith. R. S. 1909, section 2889. (2) Comity existing between sovereignties does not require the courts of one State to enforce rights accrued under contracts valid by the laws of another State if to do so is violative of the public policy of the forum as declared by the statute. Atwater v. Brokerage Co., 147 Mo.App. 449; Ruhe v. Buck et al., 124 Mo. 178; Bank of Commerce v. Morris, 114 Mo. 255; Geiser Mfg. Co. v. Todd, 204 S.W. 287; 25 L.R.A. 178-188; Lawson on Contracts (2 Ed.), sec. 341; Cyc. Law and Prac., 675 to 680. (3) The courts of a State having a statute requiring conditional sale contracts to be recorded to be valid against creditors and innocent purchasers will not enforce a conditional sale contract against a resident creditor or purchaser in good faith, when such contract is made in a foreign State where the same has not been recorded and where the laws do not require such contracts to be recorded to be valid against innocent purchasers or creditors. Minor on Conflict of Laws, sec. 130, p. 300; Hervey et al. R. I. Locomotive, Works, 93 U.S. 664; Public Park Amusement Co. v. Embree-McLean Carriage Co., 40 (Ark.), S.W. 582; 35 Cyc. p., 666; 12 L.R.A. 700, (Old Series). It is the general accepted doctrine of American courts, that mere knowledge on the part of the vendor that the vendee intends to make an unlawful use of the goods sold is not sufficient to invalidate the sale. Curran v. Downs, 3 Mo.App. 468; Michael v. Bacon, 49 Mo. 474; Kerwin & Co. v. Doran, 29 Mo.App. 406.
Plaintiff, as the original vendor, proceeded in replevin to secure possession of a Packard automobile. The alleged right to recover is based upon a written conditional sale contract executed in Memphis, Tennessee. Before the trial defendant died, and the cause was revived in the name of his administrator, the Citizens Trust Company but the abstracts and briefs here style the case as it was originally, and our use of the word defendant has reference to Stephens. Defendant claims title by virtue of a bill of sale executed in Caruthersville, Mo., by one Martin, plaintiff's conditional vendee. The cause was tried before the court, without a jury, and judgment went for defendant, and plaintiff's after the usual steps, appealed.
On November 19, 1918, at Memphis, where plaintiff and Martin were domiciled, Martin purchased from plaintiff, under a conditional sale contract, the automobile in question, at the price of $ 1500. Martin paid $ 300 down, and gave a series of 24 notes of $ 50 each, due the 1st and 15th of each month. The conditional sale contract provided that the automobile should remain the property of plaintiff until the notes with interest were fully paid, and that in case of default on any note, all of the notes then unpaid should become due and payable, and that in case of default the vendee would at once surrender the automobile, and that plaintiff could at once proceed to enforce its rights by sale. It was further provided in the contract that if the vendee at any time removed the automobile for more than three days from his then place of residence without the written consent of plaintiff that such would have the effect of a default, and plaintiff could proceed as in a default. After the purchase, and without the knowledge and consent of plaintiff, Martin removed the automobile to Caruthersville, Missouri, and there, on January 15, 1919, he bought merchandise from defendant to the amount of $ 1262, and gave in payment his check on a bank in Memphis in that sum. At the same time he gave defendant a written instrument called a bill of sale certifying that "I have this day delivered to J. W. Stephens one Buick and one Packard automobile to secure the payment of the sum of $ 1262, and if the same is not paid on or before January 17, 1919, said automobile shall be the absolute property of the said J. W. Stephens." The check went through the usual course, and was returned unpaid. Defendant had no knowledge of plaintiff's claim. He had the records of Pemiscot county examined, and found no lien, and was assured by Martin that there was no lien or claim on the automobile in question. Martin had the automobile at the time of this deal in a garage in Caruthersville, and had authorized some repairs. He turned over the automobile to defendant, and defendant had the repairs completed, and paid the bill, which was some over one hundred dollars. Immediately on ascertaining that the automobile was in Caruthersville, plaintiff proceeded to recover it, and instituted this suit on February 1, 1919.
Both sides agree that under the facts the only question for decision on this appeal is the right of plaintiff to enforce in this State the terms and conditions of the conditional sale contract. By the statute laws of Tennessee, which laws were introduced in evidence, plaintiff was not required to file or record the conditional sale contract in order to make it valid in that State as against a subsequent creditor or bona-facie purchaser without notice, and said contract was not filed or recorded in Tennessee. Plaintiff contends that under the rule of comity the contract should be upheld in this State, and given the same force and effect as given by the laws of the State where the contract was made. Defendant meets this contention by saying that the rule of comity does not obtain as a matter of right, but goes more in the nature of grace or voluntary act on the part of the State recognizing or granting it.
In considering the question of comity it should be borne in mind that the recognition of foreign laws cannot be claimed as a matter of right, but only as a favor or courtesy, that the doctrine of comity is permitted and accepted in all civilized States from mutual interest and convenience, and a sense of the inconvenience which would otherwise result, and from moral necessity to do justice in order that justice may be done in return. [5 R. C. L. 910; Olmsted v. Olmsted, 216 U.S. 386, 30 S.Ct. 292, 54 L.Ed. 530, 25 L.R.A. (N. S.) 1292; Minor v. Cardwell, 37 Mo. 350.] In the recognition and...
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