Kreibohm v. Yancey

• Decision Date: 05 February 1900
• Citation: 55 S.W. 260,154 Mo. 67
• Parties: KREIBOHM v. YANCEY et al.
• Court: Missouri Supreme Court

55 S.W. 260

154 Mo. 67

KREIBOHM v. YANCEY et al.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

APPEAL AND ERROR — BILL OF EXCEPTIONS — OMISSIONS — TRIAL — INSTRUCTIONS — VERDICT — AMENDMENT — USURY — REPLEVIN — VALUE OF PROPERTY.

1. Rev. St. 1889, § 2304, provides that it shall not be necessary, for review on appeal, that the motion for a new trial or instructions be copied in the bill of exceptions, if the bill contains a direction to the clerk to copy the same, and they are copied into the record sent up to the appellate

court. Section 2253 declares that the record sent up to the appellate court may be either a perfect transcript, or a certified copy of the record entry of the judgment, together with the order granting the appeal and a printed abstract of the entire record. Held, that where the appeal record was a certified copy of the record entry of the judgment appealed from, the order granting the appeal, and an abstract, showing that the instructions and motion for a new trial set out in the appellant's abstract, though specifically called for, were not set out in the bill of exceptions, the appellate court would consider the errors assigned to such instructions on the motion for a new trial.

2. Under Rev. St. 1889, § 2204, authorizing the substitution of the assignee of a cause of action as plaintiff after suit brought, there was no error in the trial court requiring plaintiff's assignee in an action of replevin to give a new bond as a condition to his substitution.

3. Where usury was pleaded as a defense, and plaintiff testified, on direct examination, that he had not charged over 8 per cent. on the loan, it was not error to permit him to be asked, on cross-examination, as to the rate usually charged by him, and, his answer being equivocal, to allow the stenographer who took his testimony on the point on a former trial to testify that plaintiff then stated he charged from 6 per cent. annually to 3 1/3 per cent. a month.

4. Where the jury in replevin returned a general verdict in favor of defendant, assessing the value of the property, damages, etc., and after the sheriff had commenced to adjourn court, but before it was completed, the foreman handed in another verdict, finding in favor of defendant as to one particular piece of the property, and for the plaintiff as to all other property sued for, and, in answer to the court, the foreman replied that the jury found in favor of the defendant as to all the property, it was not error for the court to direct the correction of the first verdict so as to make it include the entire finding, which was done in open court, and before adjournment.

5. Act April 21, 1891, § 2 (Rev. St. 1889, § 3710), declaring that, in actions for the enforcement of liens on personal property, where the validity of such lien is drawn in question, proof that the party holding it has received and exacted usurious interest for the indebtedness shall render such lien void, is not unconstitutional, as a restraint on the right to contract or wrongful exercise of the police power.

6. Act April 21, 1891, § 2 (Rev. St. 1889, § 3710), declaring that proof of usury received or exacted on a debt secured by chattel mortgage in an action to enforce such lien shall invalidate the lien, is not invalid, as class legislation.

7. Where a party executed and delivered 12 notes, each for a certain sum, for money borrowed at the time, but only received the amount of 9 of the notes, which were secured by chattel mortgage, the transaction was usurious.

8. Where the court charged that if the notes described in the mortgage and put in evidence were the only notes executed by defendant in consideration for money borrowed at the time, and that the sum total of such notes was greater than the amount actually received by defendant and the sums paid out at his request, together with interest at 8 per cent. per annum on the amount actually received, the transaction was usurious, the judgment for defendant will not be reversed on appeal for the reason that the jury might have omitted an item of 63 cents that, under the evidence, might have been charged to defendant for drawing up the papers, in the absence of a request by plaintiff to have the instruction made more definite.

9. An instruction in replevin that, if the jury find for defendant, they should assess the present value of the property, and assess the damages for the taking and detention in a sum equal — First, to the value of its use since the taking, less what it would cost to keep it in repair and the depreciation in value by reason of being used; and, second, any depreciation in its value by reason of breakage, etc., in taking it under the writ, or caused by improper use or care subsequent to the taking, and should assess the value of the property at its reasonable market value as set up and in position as it was at the time of the taking, — does not violate the rule that in replevin the value of property at the time of the trial is the value to be found by the jury.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by A. O. Kreibohm against Glenwood Yancey and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Kinealy & Kinealy, for appellant. Daniel Dillon and O. A. Appel, for respondents.

BRACE, P. J.

This is an action in replevin begun before a justice of the peace in the city of St. Louis. The statement, affidavit, and bond are in statutory form, and the property, under the order of the justice, was taken by the constable from the possession of the defendants, and delivered to the plaintiff. The property was claimed by the plaintiff under a chattel mortgage, as follows: "Know all men by these presents, that Glenwood E. Yancey, of the city of St. Louis and state of Missouri, in consideration of the debt herein mentioned and created, and the sum of one dollar to me paid by H. H. Hill, of the same place, the receipt of which is hereby acknowledged, do sell and convey to H. H. Hill the goods and chattels now in the house 2335 Franklin Ave., known as `Acme Laundry,' in the city of St. Louis, state of Missouri, to wit: One Kreibel upright engine, No. 805, manufactured by Rice and Whitacie Mfg. Co., Chicago, Ills.; one upright boiler, manufactured by same company as engine; 2 settling tubs; 1 steam washer; 1 steam wringer; 1 soap tank; 6 pulleys; 3 pieces shafting; 1 countershaft and blower; 1 combination shirt and collar and cuff ironer; 1 collar and cuff shaper; 1 collar and cuff starcher; 5 tubs; 3 ironing boards; 1 three-spring top wagon; bay horse, 8 years old, 14½ hands high; 8 flat irons; 1 Howe sewing machine; 5 tables, 2 stoves, pipe, etc.; 3 chairs; counter and shelving; 1 dry house; 1 set single harness; and all other articles connected with the Acme Laundry, 2335 Franklin Ave., — upon condition that if I pay said H. H. Hill or his assigns my 9 promissory notes of this date, for the sum of twenty-one dollars, each due and payable in 1, 2, 3, 4, 5, 6, 7, 8, and 9 months after date, then this conveyance shall be void; otherwise, it shall remain in full force and effect. Said property may remain in my possession, but in case I fall to pay said notes as they become due, respectively, or in case said mortgagee or assigns should at any time deem himself insecure, said mortgagee or assigns may take possession of said property, and sell the same at public or private sale, and out of the proceeds pay said debt and all costs and expenses, and to me the balance. At said sale said mortgagee or assigns may purchase said property. Witness my hand and seal this 26th day of April, 1895. Glenwood E. Yancey. [Seal.]" The plaintiff obtained judgment for the property in the justice court, and the defendants appealed therefrom to the circuit court, city of St. Louis, where, upon a trial de novo, the judgment was for the defendants, and the plaintiff appeals to this court.

On March 17, 1897, after the case had reached the circuit court, the plaintiff filed therein an assignment of his cause of action to John A. King, and his petition asking that said King be substituted for him as plaintiff therein. Thereupon the court made the following order: "Comes now the plaintiff, by attorney, and presents to the court his petition this day filed, praying for an order substituting the name of John A. King as plaintiff in this cause, in the place and stead of Albert O. Krelbohm, and presents also to the court his assignment of the cause of action herein to said John A. King, and said King's written request to be so substituted; and the court, having heard and duly considered the same, doth order that said petition will be sustained, if a new replevin bond conditioned according to law, with sureties to be approved by the court, is filed in this cause on or before March 20, 1897; otherwise, said motion will be overruled." And afterwards, on the 23d of March, 1897, the court made the following order: "It appearing to the court that no new replevin bond has been filed herein as required by the order entered in this cause March 17, 1897, within the time required in said order, on motion of defendants, by attorney, it is ordered by the court that the motion heretofore filed and submitted herein for an order substituting the name of John A. King as plaintiff in this cause, in the place and stead of Albert O. Kreibohm, be, and the same is hereby, overruled." To these orders plaintiff excepted, and now assigns them as error.

The defense set up to plaintiff's action in the circuit court was that the mortgage was made and executed by the said Yancey to secure an indebtedness for which "usurious interest was taken and exacted"; that the words, "and all other articles connected with the Acme Laundry, 2335 Franklin avenue," were not in said mortgage when it was executed by Yancey, but were inserted afterwards, without his knowledge or consent; and that a certain Columbia collar and cuff machine, taken under the writ,...