Joseph Greenspon's Sons Iron & Steel Co. v. Gerstein

• Decision Date: 06 May 1930
• Citation: 27 S.W.2d 487,224 Mo.App. 330
• Parties: JOS. GREENSPON'S SONS IRON AND STEEL COMPANY, A CORPORATION, APPELLANT, v. I. GERSTEIN, PAUL KATZ, THE YOUDELL INVESTMENT COMPANY, AND THE MANUFACTURERS' RAILWAY COMPANY, RESPONDENTS. [*]
• Court: Missouri Court of Appeals

27 S.W.2d 487

224 Mo.App. 330

JOS. GREENSPON'S SONS IRON AND STEEL COMPANY, A CORPORATION, APPELLANT, v. I. GERSTEIN, PAUL KATZ, THE YOUDELL INVESTMENT COMPANY, AND THE MANUFACTURERS' RAILWAY COMPANY, RESPONDENTS. ^[*]

Court of Appeals of Missouri, St. Louis

May 6, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. James F. Green, Judge.

AFFIRMED.

Judgment affirmed.

Louis Mayer and Irl B. Rosenblum for appellant.

(1) A vendor of personal property is entitled to a lien thereon for the unpaid purchase price only in the event of the continued possession of the property by the vendor and the insolvency of the vendee. Vogelsang v. Fischer, 128 Mo. 386; Wheless v. Grocer Company, 140 Mo.App. 572; Conrad v. Fisher, 37 Mo.App. 352. (2) A vendor's lien is lost where the vendee has changed the character of the property by expending labor or money upon it in pursuance of a contract of sale. Jones on Liens (3 Ed.), sec. 822; Douglas v. Shumway, 13 Gray (Mass.) 498. (3) The vendor's lien is lost where the vendor clothes the vendee with the apparent ownership of property which the vendee is permitted to sell. Jones on Liens (3 Ed.), sec. 846. (4) An instruction which purports to direct a verdict for defendant must cover all of the issues necessary to a recovery by defendant. Gibson v. City of St. Joseph, 216 S.W 50; Delfosse v. Railway Co., 201 S.W. 860 (S.Ct.). (5) Instruction No. 1 given on behalf of defendant, Youdell Investment Company contains an abstract proposition of law and leaves to the jury the decision as to a question of law and is therefore erroneous. Lewis v. Public Service, 17 S.W.2d 359; Vrodinger v. Citizens Bank, 300 S.W 311; Fuller Co. v. St. Louis Drug, 282 S.W. 535; Henry v. Illinois Central R. R. Co., 282 S.W. 423 (S.Ct.). (6) Comment on evidence of Gerstein by court was incorrect, prejudicial on an important issue, and therefore erroneous. Clear v. Van Blarcom, 251 S.W. 81. (7) A verdict and instruction authorizing it fixing the value of replevined property must be based upon evidence of such value and the value must be fixed at the time of the trial and not at the time of taking under the writ. Fergusson v Comfort, 184 S.W. 1192, 194 Mo.App. 423; Todd v. Fitzpatrick, 259 S.W. 490; Muzenich v. McKane, 274 S.W. 888; Yahlem Motor Co. v. McCord, 299 S.W. 49 (Ct. App.).

Taylor, Mayer & Shifrin and Hay & Flanagan for respondent Youdell Investment Company.

NIPPER, J. Haid, P. J., and Becker, J., concur.

OPINION

NIPPER, J.

This is a suit in replevin, brought by Joseph Greenspon's Sons Iron and Steel Company against I. Gerstein, Paul Katz, The Youdell Investment Company, and the Manufacturers' Railway Company.

The petition alleges that plaintiff is the owner, and lawfully entitled to the possession of two cars of scrap pipe, scrap hangers, and mixed iron; that the value of the property is $ 4000, and that defendants unlawfully and wrongfully detained said property from the plaintiff; that the property is located in the city of St. Louis. Plaintiff also asks damages in the sum of $ 1000, for the detention of said property. The sheriff executed an order of delivery by taking the property and delivering it to plaintiff.

Defendant Youdell Investment Company is the only defendant who filed an answer. A demurrer was sustained to the first answer, on the ground that there was no allegation of insolvency of defendants Gerstein and Katz. Plaintiff filed a motion to strike out parts of the second amended answer of the Youdell Investment Company, but this motion was overruled.

The answer of the Youdell Investment Company, in addition to a general denial, alleges that at the time this suit was instituted by the plaintiff and the property seized under the writ of replevin, defendant was in the possession of said property by virtue of the terms of a written contract of sale from this defendant to its co-defendants Gerstein and Katz on the 21st day of April, 1923; that by the terms of a written instrument, Gerstein and Katz, purchasers of the property, agreed to pay for the same before it was removed from the premises of defendant, and that Gerstein and Katz should become liable to defendant for any damages sustained to the buildings of this defendant; that defendant received only a portion of the agreed purchase price of said property from Gerstein and Katz, and that there was an unpaid balance due on the purchase price amounting to $ 3023.12; that the property mentioned in the replevin suit was at all times in the exclusive and uninterrupted control and possession of this defendant and on the premises of defendant by virtue of which defendant had a lien upon the property. The defendant further answering, alleges that plaintiff had full, actual, and complete knowledge of the ownership and rights of this defendant to the possession of said property and of the contract hereinbefore mentioned, which contract required Gerstein and Katz to pay for said property before removing it from defendant's premises; that Gerstein and Katz fraudulently and maliciously conspired with and induced plaintiff to make a pretended claim for the ownership when Gerstein and Katz well knew that plaintiff had no interest in said property. The defendant then asks that the property be returned to it or in lieu thereof that a judgment be rendered against the plaintiff in the sum of $ 3023.12, that the value of the property was $ 6000. Defendant also asks judgment for $ 1000 for damages by the wrongful taking and detention of said property.

There was no reply filed.

Upon a trial of the issues before the court and a jury, there was a verdict and judgment in favor of defendants. From this judgment plaintiff has appealed.

The evidence discloses that the Youdell Investment Company, the defendant who contested this suit, had purchased a building which was formerly owned by the Lemp Brewery in the city of St. Louis. After the purchase of this property, the Youdell Investment Company, under date of April 21, 1923, executed a contract of sale, whereby it sold to Gerstein and Katz all pipes, fittings, shafts, pulleys, motors, conveyors, tanks and hangers, located in what is known as the fermenting building and the four-story building adjoining said premises. The consideration was $ 6000; $ 500 was to be paid on Tuesday, April 24, 1923, $ 500 was paid at the time the contract was executed, and $ 5000 was to be paid within sixty days from the date of the contract, and before removing any part of the material. It was further provided that Gerstein and Katz were to remove the material purchased at their own cost and expense within sixty days from the date of the contract, and to be responsible for any damages to the premises caused by removing the pipes and material before mentioned. The contract also provides that Gerstein and Katz are given the privilege of selling this material or any part of it provided they pay for the same before it is removed and prior to a period of sixty days from the date of the contract, on a basis of not less than ten cents per foot.

It appears that Gerstein and Katz sold this material or a large part of it to plaintiff. One car or more had been removed from the premises, but defendant had been paid for same. When the two carloads in question were attempted to be removed, defendant Youdell Investment Company refused to permit the removal of these two cars until the same was paid for. Plaintiff then brought this action in replevin. The suit was filed on August 3, 1923, yet the case was not tried until April, 1929, almost six years after the original suit was filed.

The evidence on the part of the plaintiff was to the effect that it had purchased this property without any knowledge of the terms and conditions of the...