Kansas City Wholesale Grocery Co. v. McDonald

• Decision Date: 07 May 1906
• Parties: KANSAS CITY WHOLESALE GROCERY CO. v. McDONALD.
• Court: Missouri Court of Appeals

95 S.W. 279

118 Mo. App. 471

KANSAS CITY WHOLESALE GROCERY CO. v. McDONALD.

Kansas City Court of Appeals. Missouri.

May 7, 1906.

1. TRIAL—FINDINGS OF COURT — CONCLUSION OF LAW.

In replevin by one claiming the property under a chattel mortgage, the court found that there was no evidence showing in what county the mortgagor lived at the time of the execution of the mortgage. There was substantial uncontradicted evidence from which it might be inferred that the mortgagor resided in the county in which the mortgage was filed. The court was not influenced by the finding in rendering judgment for defendant. Held, that the finding must be treated rather as a conclusion of law than as an issue of fact authorizing the court on appeal to assume that the mortgage was filed in the county where the mortgagor resided as the statute requires.

2. PLEADING—ANSWER—ADMISSIONS BY FAILURE TO DENY ALLEGATIONS.

In replevin by one claiming the property under a chattel mortgage, the petition alleged that plaintiff succeeded to the assets and credits of a corporation whose claim was secured by the mortgage covering the property in question. The allegation was not put in issue. Held, that though plaintiff was not required to allege the source of its title to the property, the allegation when made, was material within Rev. St. 1899, § 628, declaring that every material allegation in the petition not traversed by the answer, shall be taken as true.

3. REPLEVIN—RECOVERY—WHEN AUTHORIZED.

Where a constable seizes property under executions and attachment writs as the property of a debtor, and a third person was the owner and holder of a prior valid lien under a chattel mortgage executed by the debtor, and the third person was entitled to the immediate possession of the property, a judgment for the constable was erroneous.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by the Kansas City Wholesale Grocery Company against Arch McDonald. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

E. B. Chestnut, for appellant. J. P. Mead and Grayston & Graham, for respondent.

JOHNSON, J.

Action in replevin to recover possession of a stock of merchandise, fixtures, etc. A jury was waived, and, after hearing the evidence, the court entered judgment in favor of defendant, from which plaintiff appealed.

On March 21, 1903, H. Boyd, a retail grocer in Joplin, executed and delivered to the Campbell-Redell Grocery Company, a corporation, a chattel mortgage, conveying his stock of groceries, fixtures, etc., for the purpose of securing the payment of an open account, upon which he was indebted to the mortgagee in the sum of $456.83. The mortgage was filed for record in Jasper county, two days after its execution. On July 9, 1904, the account had been reduced by payments to $297.87. Plaintiff was then in possession of the mortgage, which it had held for some time, and claimed to be the owner of the debt secured. On that date the account was closed in the execution and delivery by Boyd of his negotiable promissory note to plaintiff, and the following agreement made between plaintiff, as mortgagee, and Boyd was indorsed in writing on the mortgage instrument and signed by Boyd: "It is further understood and agreed that I shall pay to the Kansas City Wholesale Grocery Co. Two Hundred and Ninety-seven and 87-100 Dollars at the rate of $25.00 per week, on Monday of each week, at the office of the K. C. Who. Gro. Co. and, if the same be not paid, then attached note to become due and payable in full according to the terms of the above instrument." On August 24,...