Kelvinator St. Louis, Inc., v. Schader

• Decision Date: 02 June 1931
• Docket Number: No. 21608.,21608.
• Citation: 39 S.W.2d 385
• Parties: KELVINATOR ST. LOUIS, INC., A CORPORATION, RESPONDENT, v. ARTHUR M. SCHADER, APPELLANT.
• Court: Missouri Court of Appeals

39 S.W.2d 385

KELVINATOR ST. LOUIS, INC., A CORPORATION, RESPONDENT, v. ARTHUR M. SCHADER, APPELLANT.

No. 21608.

St. Louis Court of Appeals. Missouri.

Opinion filed June 2, 1931.

Appeal from the Circuit Court of St. Louis County. — Hon. Amandus Brackman, Judge.

REVERSED.

Stern & Burnett and Robert L. Aronson for appellant.

(1) Conceding for the purpose of argument that the recording of the chattel mortgage upon fixtures is governed by Section 3097, Revised Statutes 1929, relative to recording conveyances of personal property, respondent's evidence was insufficient to show that it was proper to record the chattel mortgage in the City of St. Louis. (a) Respondent failed to prove that the mortgagor corporation was a local corporation. Watson v. Thompson Lumber Co., 49 Ark. 83; 4 S.W. 62; Cook v. Hager, 3 Colo. 386. (b) Respondent failed to prove that the principal place of business of the mortgagor corporation, as given in its charter, was in the City of St. Louis, and this is an indispensable matter of proof. Bank of Malden v. Wayne Heading Co., 200 S.W. 693, 198 Mo. App. 601; First National Bank v. Wilcox, 72 Wash. 532, 130 Pac. 756; Wright v. Bundy, 11 Ind. 398; Nelson v. Neil, 15 Hun. (N.Y.) 383. (2) The chattel mortgage insufficiently described the frost coils mentioned therein. Stonebraker v. Ford, 81 Mo. 532; Chandler v. West, 37 Mo. App. 631; Bozeman v. Fields, 33 Mo. App. 432; Cummins v. Kind, 266 S.W. 748, 219 Mo. App. 271; Kibbel v. Ragland, 263 S.W. 507; Hart v. Farmers Bank, 28 S.W. 121; Dierling v. Pettit, 140 Mo. App. 88. (3) The refrigeration system installed by respondent became a fixture in contemplation of law in the absence of notice to appellant of an agreement that it should remain personal property. Tyler v. White, 68 Mo. App. 607; Crane Company v. Construction & Real Estate Co., 121 Mo. App. 209; St. Louis Radiator Mfg. Co. v. Carroll, 72 Mo. App. 315; Thomas v. Davis, 76 Mo. 72; Security Stove & Mfg. Co. v. Stevens, 9 S.W. (2d) 808; Union Central Life Insurance Co. v. Tillery, 152 Mo. 421, 54 S.W. 220. (4) Appellant is not chargeable with actual or constructive notice of any agreement contained in the chattel mortgage. (a) There was no actual notice for the purposes of this case because such notice, while acquired before the foreclosure sale at which the title to the property was vested in appellant, was not acquired prior to the execution or purchase of the deeds of trust foreclosed. Finley v. Babb, 173 Mo. 257; McMurray v. McMurray, 258 Mo. 405; Funkhouser v. Lay, 78 Mo. 458. (b) An innocent, subsequent purchaser of realty is not chargeable with notice of the contents of chattel mortgage records so as to deprive him of title to fixtures attached to the realty, since he is not required to examine the personal property records. Phillips v. Newsome, 179 S.W. 1123 (Tex. Civ. App.); Ice, Light & Water Co. v. Lone Star Engine & Boiler Co., 15 Tex. Civ. App. 694, 41 S.W. 834; Bringholff v. Munzenmaier, 20 Iowa, 513; Skinner v. Stewart Plumbing Co., 155 S.E. 97 (Ga. App.); Tibbetts v. Horne, 65 N.H. 242, 23 Atl. 145; Elliott v. Hudson, 18 Cal. App. 642, 123 Pac. 103, 124 Pac. 108; Brennan v. Whitaker, 15 Ohio St. 446; Case Mfg. Co. v. Garven, 45 Ohio St. 289, 13 N.E. 493; Jones on Chattel Mortgages (5 Ed.), Section 134; Bronson on Fixtures, Section 70A; Ewell on Fixtures (2 Ed.), 486. (5) The finding of the court is erroneous because the property mentioned in the petition and the finding was not identified as that described in the chattel mortgage. The time as of which the value of property sought in replevin should be fixed is the date of trial, and there was no evidence as to such value as of that date. Westbay v. Milligan, 74 Mo. App. 179; Hoester v. Teppe, 27 Mo. App. 207; Yahlem Motor Company v. McCord, 299 S.W. 49; Muzenich v. McCain, 274 S.W. 887, 220 Mo. App. 502; Fergusson v. Comfort, 184 S.W. 1192, 194 Mo. App. 423.

William E. Buder and Buder & Buder for respondent.

(1) A chattel mortgage to be properly recorded must be filed in the county or city of the mortgagor's residence. Fahy v. Gordon, 133 Mo. 414, 34 S.W. 881; Bank of Malden v. Wayne Heading Co., 200 S.W. 693, 198 Mo. App. 601. (2) The description contained in the chattel mortgage was sufficient to describe the frost coils mentioned therein under the circumstances. McNichols v. Fry, 62 Mo. App. 13; Blurton et al. v. Hansen et al., 135 Mo. App. 548; Cook v. Wheeler, 218 S.W. 929; Sikes v. Riga et al., 297 S.W. 727. (3) The character of the electrical refrigerating apparatus as personal property was not lost or destroyed by the installation in the building. Fred W. Wolf Co. v. Herman Savings Bank, 168 Mo. App. 549; American Clay Machinery Co. v. The Sedalia Brick & Tile Co., 174 Mo. App. 485, 160 S.W. 902; Kolb v. Golden Rule Baking Co., 9 S.W. (Mo.) (2d) 840; Commercial Finance Co. v. Brooksville Hotel Co., 123 Southern (Florida) 814; Minett v. Durnherr et al., 238 N.Y. Sup. 448, 135 Misc. Rep. 259; Marker v. Williams, 39 Cal. App. 674; Goldberg v. Stanton, 84 Cal. App. 665, 258 Pac. 417; Anderson v. Southern Realty Co., 176 Ark. 752. (4) An agreement that fixtures shall retain their personal character is said to be implied from the mere giving of a chattel mortgage. Sowden & Co. v. Craig, 26 Iowa, 156; Campbell v. Roddy, 44 N.J. Eq. 244; Ford v. Cobb, 20 N.Y. 344; Tibbetto v. Horne, 65 N.H. 242; Burrell v. Wilcox Lumber Co., 65 Mich. 571; Andrews & Co. v. Chandler, 27 Ill. App. 103; Fred W. Wolf Co. v. Hermann Savings Bank, 168 Mo. App. 549; American Clay Machinery Co. v. The Sedalia Brick & Tile Co., 174 Mo. App. 485, 160 S.W. 902. (5) A building erected upon real estate can remain personal property with the owner of the building retaining right to remove it as personal property, and anyone purchasing the land with notice is bound thereby. Cox v. McKinney, 212 Mo. App. 522; Muehling v. Magee, 168 Mo. App. 675; Pile v. Holloway, 129 Mo. App. 593; Holtgreve et al. v. Sobolewski et al., 31 S.W. (2d) 993. (6) In an action in replevin the allegation as to the value of the property is not conclusive as to the value, but is considered evidence. Edwards v. Eveler et al., 84 Mo. App. 405, l.c. 410; Fergusson v. Comfort, 184 S.W. 1192, 194 Mo. App. 423. (7) No declarations of law having been asked or given, if the judgment of the court can be sustained on any theory applicable to the case, the judgment must be affirmed. Bowser v. Atkinson, 161 Mo. App. 450; Security Stove & Mfg. Co. v. Stevens et al., 9 S.W. (2d) 808; Vette v. Hackman, 292 Mo. 138, 237 S.W. 802; Kirschbaum v. Northwestern Petroleum & Refining Co., 237 S.W. 547.

HAID, P.J.

This is an appeal from a judgment for $2000 in favor of plaintiff in a replevin action tried to the court upon waiver of trial by jury.

Plaintiff brought its suit to recover possession of four Kelvinators, models No. 5512 LB condensing units, serial numbers 141905, 141909, 141828 and 141868, and thirty-six 08V frost coils of the alleged value of $2000.

Defendant denied generally all of the allegations of the petition and alleged that he is, and was at the date of the institution of the suit, entitled to the possession of the property.

The facts show that on April 9, 1928, Stanley Epstein, Inc., executed to Kelvinator St. Louis, Inc., a purchase agreement for installing refrigerating machinery and equipment in buildings 6648 and 6652 Washington Ave., St. Louis, that on May 11, 1928, Stanley Epstein, Inc., executed a chattel mortgage to the Kelvinator St. Louis, Inc., covering "Kelvinator(s) Models Nos. 4-5542 LB condensing units No. 141905, 141909, 141828, 141868" and "Other equipment (itemize) 36 — 08V frost coils" for a total of $3690, of which the mortgagor paid $600, and after adding to the balance a time financing charge of $82.19, left a balance due of $3172.19 which was to be paid in twenty-four monthly payments of $132.17 each, with interest at the rate of six per cent., from date of mortgage to due date and a larger rate after maturity.

The chattel mortgage recited that, "to secure payment of the purchase price, the mortgagor does hereby grant, bargain, sell and mortgage unto said mortgagee, the above described personal property, to have and to hold unto said mortgagee, his personal representatives, successors and assigns forever." Under the chattel mortgage the mortgagor also agreed not to remove the merchandise from the address given below until he first obtains the written consent of the mortgagee or his assigns. Under the chattel mortgage the mortgagor also consented that the mortgagee or his assigns, without notice or liability for damages, might take possession of said merchandise without process of law wherever found and authorized the mortgagee to resell such merchandise. The mortgage was signed by Stanley Epstein, Inc., by Stanley Epstein, Pres., and the address given being 904 Chestnut Street. The chattel mortgage was filed for record in the office of the recorder of deeds of the city of St. Louis on May 16, 1928.

The equipment above referred to was installed in two apartment buildings numbered 6648 and 6652 Washington Boulevard, University City, Missouri, the installation being made in the latter part of April and first part of May, 1928, by an electrical company for the plaintiff. At the time of the execution of the chattel mortgage, as shown by that instrument, Bertha Chertoff held the legal title to the real estate upon which the apartments were located. The last monthly payment was made under the chattel mortgage on March 11, 1929.

There was a second deed of trust on each of the pieces of property above mentioned, but the record does not disclose the dates thereof, nor when they were recorded. These deeds of trust were acquired by the Reliable Loan & Investment Company at some time previous to July 8, 1929 (the date of acquisition not appearing in the record), without actual knowledge of the chattel mortgage. These deeds of trust were foreclosed, the one on...