Johnson v. Noble Machine Co.

• Decision Date: 06 June 1910
• Citation: 129 S.W. 271,144 Mo. App. 436
• Parties: JOHNSON v. NOBLE MACHINE CO. et al.
• Court: Missouri Court of Appeals

129 S.W. 271

144 Mo. App. 436

JOHNSON v. NOBLE MACHINE CO. et al.

Springfield Court of Appeals. Missouri.

June 6, 1910.

1. BILLS AND NOTES (§ 145)—CONFLICT OF LAWS—NEGOTIABILITY.

A contract for sale of machinery bore date Ft. Wayne, Ind., and provided that the machinery was to be delivered on the cars at Ft. Wayne, and that in payment therefor the buyer was to execute his notes. The notes given were dated Ft. Wayne and were made payable at a bank in that city and were declared on their face to be negotiable, but were executed in Missouri, where the goods were to be delivered. Held, that the notes were Indiana contracts, and hence negotiable.

2. APPEAL AND ERROR (§ 1009)—EQUITY SUIT —CONCLUSIVENESS OF FINDINGS.

While the appellate court in an equity suit is not bound by the findings of the trial court, yet, if they are sustained by a fair preponderance of the evidence, they will not be disturbed.

3. BILLS AND NOTES (§ 525)—TRANSFER BEFORE MATURITY—NOTICE OF EQUITY—EVIDENCE.

In an action to cancel notes in the hands of a purchaser, evidence held to sustain a finding that the purchaser took them before maturity with notice of equities of the maker.

4. PARTIES (§ 91)—MISJOINDER OF PARTIES— OBJECTIONS.

Where the real purpose of a suit is to enjoin the sale of property under a chattel mortgage and to have the same canceled of record, defendants against whom no other relief is asked cannot object that the petition is demurrable because against three defendants and some of the counts were only against one of the defendants.

Appeal from Circuit Court, Ripley County; Henry C. Riley, Judge.

Action by J. E. Johnson against the Noble Machine Company, the Old National Bank of Ft. Wayne, Ind., and Alfred Perkins. From a judgment for plaintiff, defendants Old National Bank and Perkins appeal. Affirmed.

Alfred Perkins and Jno. H. Raney, for appellants. John Morgan Atkinson, for respondent

GRAY, J.

This suit was brought in the circuit court of Ripley county against the Noble Machine Company, Old National Bank of Ft. Wayne, Ind., and Alfred Perkins. The plaintiff alleges in his petition that on the 20th day of January, 1904, he entered into a contract with the defendant Noble Machine Company for the purchase of certain machinery and equipment, promising to pay therefor the sum of $1,550; that he paid in cash $350, and executed his promissory notes of $300 each; that he paid one of said notes and $171.96 on another one; that when the machinery was shipped to him from Ft. Wayne, Ind., to Missouri, other machinery was substituted for that purchased by him, and on account thereof he was damaged in a sum in excess of the balance due on the notes. The petition further alleges that, to secure the payment of said notes, the plaintiff executed to the defendant Noble Machine Company his chattel mortgage on the property so purchased from said defendant, and asked to have the notes canceled of record, and for a judgment of $50 and costs against the Noble Machine Company. In the second count of plaintiff's petition he alleges that, at the time he purchased the property, the defendant Noble Machine Company agreed to ship it at one time and in bulk, but failed to do so, and on account thereof he was compelled to pay additional sums for freight, amounting to $100, and prayed for judgment therefor. In the third count of his petition, he asked for a judgment against the Noble Machine Company in the sum of $1,000, for failure of the company to ship the machinery to him promptly. After setting forth his causes of action against the defendant Noble Machine Company, in three counts as aforesaid, the plaintiff alleges that the Noble Machine Company, with the intent to injure and defraud the plaintiff, fraudulently and without consideration made a pretended assignment of said notes and mortgage to the defendant Old National Bank, and that at said time said bank knew the consideration for said notes had failed, and that the bank conspired and colluded with the Noble Machine Company for the purpose of aiding the machine company to injure and defraud plaintiff in the payment of the notes. It is further alleged that the bank, through the defendant Perkins, its attorney, is about to advertise and sell the machinery under the power of sale contained in the chattel mortgage, and asked for a temporary injunction restraining a sale, and declaring the chattel mortgage and notes null and void, and asked to have them canceled of record. Upon application to the court, a temporary restraining order was issued, restraining the defendant and each of them from foreclosing the chattel mortgage. The machine company made no appearance in the cause. The other defendants first demurred to the petition, which was overruled, and they afterwards answered, admitting that it was the intention of said defendants to foreclose the chattel mortgage and sell the property at public sale on the 22d day of July, 1905. It was further stated that the bank was a purchaser of said notes before maturity for a valuable consideration with notice of any defense the...