Luechtefeld v. Marglous, 25221.

Decision Date03 June 1941
Docket NumberNo. 25221.,25221.
PartiesLUECHTEFELD v. MARGLOUS.
CourtMissouri Court of Appeals

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be reported in State Reports."

Action in replevin by Joseph J. Luechtefeld, doing business as the Forest Park Lumber & Supply Company, against Theodore H. Marglous to recover notes and a trust deed securing them. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Robert W. Hall, of St. Louis, for appellant.

Taylor, Mayer, Shifrin & Willer, of St. Louis, for respondent.

ANDERSON, Judge.

This is a suit in replevin to recover notes secured by a deed of trust on certain real estate. Plaintiff has appealed from a judgment in favor of defendant. In his petition plaintiff alleged that he was at all times the owner and lawfully entitled to possession of the notes and deed of trust involved in the suit. The notes consisted of one dated August 18, 1930, for $3,250, made and executed by Charles F. Vatterott, Jr., and Jeanette Vatterott, his wife, payable to Elizabeth Rush in three years, together with six semiannual interest notes for $97.50 each, payable 6, 12, 18, 24, 30, and 36 months after date, respectively. The deed of trust securing said notes was on Lot 2, Block 5, Goodfellow Terrace, St. Louis County, Missouri. The deed was to William J. Westphale, trustee for Elizabeth Rush, the payee in the said notes. On October 31, 1930, said property was sold and transferred to George Engler and Pearl Engler, his wife. The petition then alleged that on August 12, 1933, a payment of $500 was made upon the principal note, reducing the same to $2,750, at which time the loan was extended for 3 years, and 6 interest notes were executed in the sum of $82.50 each, payable in six-month instalments thereafter. In August, 1936, according to plaintiff's information and belief, said loan was extended for a period of 5 years, with accompanying interest notes of $82.50 each. The petition further alleged that said principal and interest notes were wrongfully and unlawfully taken from the possession of plaintiff.

Judgment was prayed for possession of said principal note of $2,750, 9 unpaid interest notes of $82.50 each, and said deed of trust. The petition also asked for damages in the sum of $500 for the alleged wrongful taking and detention of said notes, and prayed that in the event delivery of said notes and deed of trust could not be had, that plaintiff have judgment for $2,750, and $500 damages, together with interest at 6 per cent.

The answer of defendant, in substance, alleged that prior to the 18th day of August, 1936, defendant purchased said principal note and deed of trust from the plaintiff, through his duly authorized agent, for the sum of $2,750, the amount due on said note at said date, and that said note and deed of trust were delivered to defendant pursuant to said agreement of purchase. It was further alleged that plaintiff had held out his said agent at the time, and on many occasions prior thereto, as being authorized to sell and receive payment for various notes and deeds of trust which plaintiff owned, negotiated, and sold; that plaintiff made a business of selling deeds of trust by himself and by and through the agent, who dealt with defendant, and ratified his agent's acts in selling said note and deed of trust to defendant; that after said purchase of said note, plaintiff, knowing all the facts, authorized the maker of said note to pay the interest on said note to defendant; that plaintiff permitted said agent to have access to his safe, wherein were placed the note, endorsed in blank, and the said deed of trust; that plaintiff was estopped to deny that said agent acted with his authority and in his behalf, and that defendant purchased said note in good faith and without any notice or knowledge of any defects or infirmities before maturity and for full value. Said answer also contained a general denial.

The plaintiff, Joseph J. Luechtefeld, doing business as the Forest Park Lumber and Supply Company, was engaged in the business of furnishing materials for the construction of houses, and it had been his practice to take notes secured by deeds of trust on real estate in payment of material sold. The $3,250 note and deed of trust involved in the case at bar were executed on August 18, 1930, by Charles F. Vatterott, Jr., and wife, payable to Elizabeth Rush, a straw party for plaintiff. The property upon which said deed of trust was given was later sold to Mr. and Mrs. George Engler, and they assumed payment of the note and deed of trust. In 1933, $500 was paid on said note, and same was extended for a period of three years. Thereafter the events which gave rise to this controversy occurred.

Plaintiff claims that said note and deed of trust were unlawfully taken out of his possession by the defendant. The defendant claims that prior to the maturity of the note, in August, 1936, he made a purchase of same, and that said note and deed of trust, pursuant to the agreement of purchase, were delivered to him by defendant's agent, Sylvester J. Voss. The evidence does show that said note and deed of trust were delivered by Voss, but plaintiff contends that there was no sale and that Sylvester Voss had no authority either to make the sale or to deliver the notes and deed of trust to defendant.

Plaintiff testified that about three or four months before the Engler note came due, the defendant Marglous asked him if he had any deeds of trust for sale, and that he told him that he did not, and that furthermore he did not want to sell defendant any more deeds of trust, as each time he did he had trouble with him. This evidence was contradicted by defendant, who testified that after the Englers came to his house in April, 1936, he went to see plaintiff about the Engler loan, and plaintiff told him he could have it, and that thereafter, before the note was due, he arranged to take over the loan, and had the Englers execute renewal papers. Marglous' evidence further showed that in August, 1936, he secured a cashier's check for $2,700, and an additional check for $50, both of which he delivered to Voss, and at the same time received from Voss the notes and deed of trust. The evidence shows that Voss appropriated the $2,700 check to his own use, and further shows that Voss was an employee of the plaintiff.

It was plaintiff's position at the trial that Voss had no authority to receive the money or to deliver the notes and deed of trust. Plaintiff testified that the duties of Voss consisted in making plans, selling lumber, and taking orders, and that he never sold a deed of trust or accepted money due on any sale, although plaintiff admitted on cross-examination that Voss might have taken payments on deeds of trust if someone handed the payments to him, and he would then have turned the money over to one of the girls in the office, as it was the duty of the girls, when present, to handle the money.

The defendant testified that about eight or nine years prior to the trial he was introduced to plaintiff by Mr. Vatterott, who wanted him to take up some deeds of trust on buildings that Vatterott was constructing. At that time defendant purchased five deeds of trust, and was introduced to Voss by plaintiff. Defendant further testified that on that occasion plaintiff said: "Mr. Voss will turn these papers over to you. Mr. Voss has authority to do anything around this place of business, if you pay the money to him." The defendant stated that at different times later he bought several more deeds of trust, and each time they were delivered to him by Voss, to whom he always paid the money due. The evidence showed that Voss receipted for the $500 principal payment made on the Engler deed of trust on August 12, 1933. The evidence further showed that Voss had been in plaintiff's employ for ten years or more, was the oldest man in the office, and received the largest salary of any employee. He had access to the safe where notes and deeds of trust were kept. The other employees in plaintiff's office were his grandson, Roderick Baalmann, who was 21 or 22 years old at the time of the trial, and had started to work for plaintiff in June, 1935, and one Dorothy Buescher, about 25 or 26 years of age at the time of the trial.

Mrs. Engler testified for defendant that the interest notes were paid to Mr. Voss under plaintiff's directions. She stated: "Mr. Luechtefeld told me to pay the money to Voss. From then on I transacted all my business with Mr. Voss. * * * I paid the $500 on April 12, 1933, to Mr. Voss, and Mr. Luechtefeld was present at the time. Mr. Voss gave me this receipt." She further testified that she told plaintiff that when the note fell due she was going to have someone else take it up; that plaintiff told her it was all right for her to do that She saw plaintiff about a month before the deed of trust fell due. She testified, "I told him I was going to take it up and would send in a gentleman by the name of Marglous and he said it would be all right — that it would be taken care of." She further testified that on August 14, 1936, when the last interest note was due, she had a check made upon Mercantile-Commerce Bank & Trust Company; she called Mr. Luechtefeld and asked him if she should come out and take up the last note, and he said not to bother, but "to give it to that man, and he will take it up."

Voss testified that he had no jurisdiction over the deeds of trust, but he figured them up, and turned them over to parties at plaintiff's instruction a number of times, and had turned over other deeds of trust to defendant prior to the delivery of the Engler deed. He also stated that he would turn over money collected on deeds of trust to the girl in the office.

Appellant's first assignment of error is that the court erred in permitting defendant's counsel to interrogate plaintiff while on the witness stand with reference to the...

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