Kennedy & Parsons Co. v. Hassen
| Decision Date | 21 June 1929 |
| Docket Number | No. 20771.,20771. |
| Citation | 18 S.W.2d 112 |
| Court | Missouri Court of Appeals |
| Parties | KENNEDY & PARSONS CO. v. HASSEN et al. |
Appeal from Circuit Court, Audrain County; Emil Roehrig, Judge.
"Not to be officially published."
Replevin by the Kennedy & Parsons Company against H. Hassen and another. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded.
Fry & Hollingsworth, of Mexico, Mo., for appellant.
A. C. Whitson and J. M. Bone, Jr., both of Mexico, Mo., for respondents.
This is an action in replevin, instituted by Kennedy & Parsons Company, of Omaha, Nebraska, against H. Hassen and Said Hassen, of Mexico, Mo., for possession of certain dairy machinery and equipment held in the Hassens' store building at Mexico Mo. One H. D. Mincer leased the store building of defendants and purchased the machinery from the plaintiff. The lease of Mincer was to begin on February 1, 1928, and end January 31, 1930, and provided for a monthly rental of $75. The lease reserved a lien on all equipment and fixtures placed in the building by Mincer. Mincer purchased the dairy equipment from plaintiff under a conditional sales contract dated January 24, 1928, and filed in the recorder's office of Audrain county on February 1st following. This conditional sales contract described the property in the same minute detail as it is described in plaintiff's petition in replevin. This so-called conditional sales contract was acknowledged by plaintiff, but the acknowledgment of Mincer was not attached thereto. The machinery and equipment was moved into the store building by Mincer about February 1, 1928. The lease was recorded and the conditional sales contract was filed for record in the recorder's office of Audrain county. Mincer became delinquent in the payment of the rents on the building, as well as the payment to plaintiff on the machinery so purchased, and on June 20, 1928, plaintiff filed this suit in the circuit court of Audrain county to replevin the property, and the sheriff took possession of the same and delivered it to plaintiff.
Mincer failed to pay rent for July, August, and September, and under the terms of the lease was indebted to defendants in the sum of $300 for rent. The cause was heard by the court without the aid of a jury, a jury being waived, at which time it was agreed between the parties that any damage for the taken and retention of the property should be nominal. The agreed value of the property taken was $400. The court rendered a decree in favor of the defendants, and from that order and judgment the plaintiff has appealed.
The answer to the replevin suit alleged, after first a general denial, that on January 19, 1928, one H. D. Mincer entered into a contract of lease with the defendants, for the leasing of a room of their building for the period mentioned; that under and by virtue of the terms of the lease Mincer was to pay defendants the sum of $75 per month, and that the lease provided that all equipment and fixtures of the said Mincer in said building should stand for the rent in favor of the defendants, and a lien was reserved in their favor on all such equipment and fixtures; that Mincer paid the rent on the premises for the months of February, March, April, and May, but failed and refused to pay the rent thereafter, and that therefore the defendants became entitled to the property described in plaintiff's petition; that the reasonable value of the property as taken by the plaintiff was $450, and damages were asked for the taking and detention of the same in the sum of $250.
The evidence disclosed that Mincer purchased the equipment to place in this building from the plaintiff, and executed a conditional sales contract therefor. This contract provided the method and manner of payments to be made by Mincer, and described the property as follows:
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