Leavel v. Johnston

• Decision Date: 13 June 1921
• Citation: 232 S.W. 1064,209 Mo.App. 197
• Parties: C. B. LEAVEL, Appellant, v. HARRISON JOHNSTON, JR., Respondent
• Court: Kansas Court of Appeals

232 S.W. 1064

209 Mo.App. 197

C. B. LEAVEL, Appellant, v. HARRISON JOHNSTON, JR., Respondent

Court of Appeals of Missouri, Kansas City

June 13, 1921

Appeal from the Circuit Court of Jackson County.--Hon. Daniel E Bird, Judge.

AFFIRMED.

Judgment affirmed.

Ira S Gardner and C. S. McLane for respondent.

Stewart Taylor and Ball & Ryland for appellant.

BLAND J. Trimble, P. J., concurs; Arnold, J. not sitting.

OPINION

BLAND, J.

This is a suit to replevin an automobile. There was a trial before the court without the aid of a jury resulting in a judgment for plaintiff. The court thereafter sustained defendant's motion for a new trial without assigning any reason therefor and plaintiff has appealed. One of the grounds for a new trial set forth in the motion was that the verdict was against the weight of the evidence. The court having failed to state its reasons for granting a new trial, it may be assumed that it was on the ground that the verdict was against the weight of the evidence. [Alexander v. Allison, 224 S.W. 50; King v. Mann, 199 S.W. 705.]

It is well settled that the trial court has authority to grant one new trial to each party upon the ground that the verdict is against the weight of the evidence (Sec. 1415, R. S. 1919), and that the granting of a new trial on such a ground will not be interfered with by the appellate court if there is substantial evidence that would justify a result contrary to the verdict, and in no case will the granting of such a new trial be disturbed unless the evidence is such that no verdict in favor of the party to whom a new trial is granted could be allowed to stand. [Alexander v. Allison, supra; King v. Mann, supra; Bernheimer v. Scott, 228 S.W. 523.]

This suit was filed on February 24, 1919. The petition is not set out in the abstract of the record but it recites that the petition was in due form. The answer and counterclaim of defendant pleads that on July 17, 1918, the automobile in question was the property of one W. T. Middleton; that on said date said Middleton borrowed of defendant as trustee $ 282, evidenced by three notes to secure which said Middleton gave a chattel mortgage on said automobile in favor of one William Baldwin, who was the payee in said notes; that on January 14, 1919, a balance of $ 238.78 and interest was due and unpaid on said notes; that said notes were assigned to the defendant for collection and that after frequent and unsuccessful demands for payment being made, defendant filed a replevin suit on January 14, 1919, in the circuit court of Jackson county, Missouri, against said Middleton to get possession of said automobile for the purpose of foreclosing said mortgage and collecting said notes; that on February 24, 1919, the automobile was siezed by the sheriff under a writ issued in said replevin suit and the sheriff delivered the automobile to the defendant; that immediately thereafter it was siezed again by the sheriff under a writ of replevin in the case at bar and delivered back to plaintiff; that defendant's replevin suit was undisposed of. Defendant then claimed a lien on said automobile under said chattel mortgage and claimed possession of the car, and alleged that the automobile was delivered to the plaintiff by Middleton on February 22, 1919,; that plaintiff secured a bill of sale and made a pretended purchase of the car from Middleton. Defendant prayed that the car, which was depreciating in value, be sold and that possession of the automobile or the proceeds thereof "be awarded and ordered returned to defendant and further that he be adjudged entitled to said car and the possession thereof against this plaintiff; and that he have a lien thereon for the amount and all costs as above described." Defendant further prayed for $ 200 damages against the plaintiff for the wrongful taking of the automobile by plaintiff. The answer also contains a general denial.

The evidence is undisputed as to the execution of the notes and chattel mortgage mentioned in the answer and there being a balance unpaid thereon at the time of the institution of this suit. However, plaintiff sought to prove that the chattel mortgage was void under section 6495, Revised Statutes 1919, on account of usury in connection with the making of the loan.

The facts in relation to the making of the chattel mortgage show that defendant Johnston was a trustee for his sister, who lived in the State of Mississippi, in loaning a fund of about $ 3,000. Defendant's sister was not paying defendant anything for his services during the year in which this transaction took place. Both plaintiff and defendant are lawyers living in Kansas City, Missouri. Middleton was a friend of plaintiff and plaintiff, knowing that Johnston loaned money on automobiles, took Middleton to Johnston's office in Kansas City and applied for a loan.

Defendant testified that he made loans only to those persons who might be prospective clients of his; that his primary purpose in handling this money was to secure law business for himself; that it afforded a method of extending his acquaintance; that when Middleton and plaintiff visited his office he told them that he could not charge a commission of any sort for the loaning of the money under the holding of the case of Western Storage & Warehouse Co. v. Glasner, 169 Mo. 38, 68 S.W. 917. It seems that defendant was loaning the money at eight per cent. interest, the limit allowed by the statute (Secs. 6492, 6493, 6494, 6495, R. S. 1919). Defendant told Middleton that he would have to become a client of his in order for him to make the loan. He asked Middleton "was he tied up with Leavel so that he could not . . . take his law business to anybody else" and if he had any other law business, and that he (defendant) made loans only to people who could bring him law business. He also asked Middleton "if he had any title to examine or something like that." Middleton told defendant that Leavel transacted all his law business, so no agreement for law work was made but later Middleton, alone, came to defendant's office and said that he had some mining stock for sale and that if defendant would introduce him to a dozen prospects, he would pay him $ 25. He asked defendant if he would regard that as a proper transaction and if that would be giving defendant such business as would prevail upon him to make the loan. Defendant, having lived in the vicinity of the mining property and knowing something of it, accepted this proposition and attempted to find the dozen prospects but was only able to find six of them, and a day or two before, or on the day of the loan, Middleton told defendant that would pay him $ 3 for each prospect, or $ 18 for all six. Middleton did not have the $ 18 in cash so he gave defendant his personal note for that sum, either the day of the loan or the day before. The $ 18 note was signed in defendant's office and was made payable to defendant.

Defendant further testified that Middleton wanted to borrow $ 275; that Middleton had told him that he had $ 300 coming to him shortly and in view of this, defendant said, "Let's make it (the loan) $ 282 so that it will make you owe me $ 300 when it comes. " The loan was not consummated in Kansas City, defendant testifying that in view of the provisions of the Casey act, sections 8810-8820, Revised Statutes 1919, he was in doubt as to whether he was not required to take out a license to do a chattel loan business in Kansas City, and as to whether the making of such a loan without a license would make the mortgage invalid, so he suggested, as he did in all loans that he made, that they go to the city of Independence, the statute not applying to cities of that size, for the purpose of making the loan. He suggested this for that reason and for the further reason that he desired to extend his acquaintance for the purpose of getting business from the parties to whom he loaned money and from their friends by riding to Independence and back with them. So Middleton, plaintiff and defendant rode to Independence and there Middleton executed the chattel mortgage and notes in favor of defendant's uncle, William Baldwin, who lived in the State of Mississippi. The loan was made on July 17, 1918, and was evidenced by three notes, one for $ 32 due in one month, another for $ 50 due in two months, and the third for $ 200 due in three months after date. The chattel mortgage purported to secure all three of these notes but did not secure the $ 18 note.

Defendant further testified that when he first began to loan money as trustee he took the notes in his own name as trustee but as he was attempting to get clients through the loaning of this money, "I didn't like for it to look as though I was loaning money," "and more than that, people thought it was my money;" that he did not think it was proper for a trustee to appear to be loaning his own money; that his uncle, William Baldwin, suggested that it was better not to make loans in defendant's name. He also testified that he told Middleton where Baldwin lived but he did not testify that he told Middleton for whom he as actually loaning the money. The $ 18 note was made payable on the day that one of the three notes was payable. Defendant testified that he made the $ 18 note payable that way because "I find I can collect a note better that way." When a fellow has to pay another note he is on hand." The notes for $ 18, $ 32 and $ 50 were paid. Plaintiff testified that at the time of this transaction defendant told him that he took the $ 18 note for his commission; that defendant said "that he was doing business at Independence because he did not want to take out a license here (Kansas City)."

Plaintiff insists that the facts show as a matter of law that defendant was charging...