M. F. A. Co-op. Ass'n of Mansfield v. Murray, 8119
| Decision Date | 01 March 1963 |
| Docket Number | No. 8119,8119 |
| Citation | 365 S.W.2d 279 |
| Parties | M. F. A. COOPERATIVE ASSOCIATION OF MANSFIELD, Missouri, Plaintiff-Appellant, v. Bill MURRAY and Floyd Lawson, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for plaintiff-appellant.
No appearance for defendants-respondents.
This is a replevin action, in which M. F. A. Cooperative Association of Mansfield, Missouri (hereinafter referred to as plaintiff) appeals from an adverse judgment (a) directing the return to Bill Murray and Floyd Lawson (hereinafter referred to as defendants) of a 1955 Fruehauf refrigerated trailer, Serial No. AV-198283 () and (b) adjudging that defendants recover from plaintiff $1,500 for loss of use of the trailer together with costs. An approved bond having been given by plaintiff [Rules 99.03 and 99.04; Secs. 533.030 and 533.040 1 when suit was instituted on May 3, 1960, the sheriff took the trailer the following day and delivered it to plaintiff, who still has possession of it by virtue of the filing and approval of a supersedeas bond. Rule 82.09.
During the first half of 1959, defendants, operating out of Crane, Missouri, as partners under the firm name of Lawson and Murray, were engaged in hauling live chickens to the Clinton, Missouri, processing plant of Anderson-Haley Poultry Company (hereinafter referred to as Anderson-Haley), to whom a Missouri certificate of incorporation had been issued on January 14, 1959. Defendants 'bought some' of the poultry themselves and 'hauled some for other people.' For the poultry delivered to its Clinton plant, Anderson-Haley was to pay the 'market price' plus 1 1/2cents per pound for hauling. Defendants were to collect the sale price of the chickens hauled for others and were 'to pay those other people' for their poultry. At first, Anderson-Haley usually paid defendants within two or three days after delivery of chickens to the Clinton plant. However, as time passed, the indebtedness of Anderson-Haley to defendants mounted steadily so that, by June 22, 1959, that indebtedness was (as defendants testified) 'a little less than $65,000.' In these circumstances, defendants sought and obtained 'some security from (Anderson-Haley) for this indebtedness' in the form of a negotiable promissory note in the principal sum of $100,000, dated June 22, 1959, payable in monthly installments of $1,000 each, and secured by deed of trust of even date (hereinafter referred to as the deed of trust of June 22) which covered Anderson-Haley's processing plant at Clinton, including 'all plant machinery and equipment * * * which are permanent fixtures.' This deed of trust was, on the same day, filed for record in the office of the Recorder of Deeds of Henry County, Missouri. We note parenthetically defendants' trial explanation of the $100,000 principal sum in the note of June 22, to wit, that, although Anderson-Haley's processing plant was not operating then, Frank M. Haley (identified as president of Anderson-Haley) 'was figuring on starting up again and we wanted enough of those assets to assure us (defendants) of our money'--'we didn't know how much poultry they (Anderson-Haley) would let us haul in there to them' in the future.
On August 7, 1959, plaintiff sold and delivered two loads of broilers to Anderson-Haley at Clinton, for which check 'was supposed to issue * * * within the next day or tow.' No remittance having been received in the meantime, plaintiff's manager Tripp went to Clinton on September 22, 1959, found that Anderson-Haley's plant was not operating, and after talking with Haley examined the recorded deed of trust of June 22. On the day following his trip to Clinton, to wit, on September 23, 1959, Tripp went to the office of attorneys (herein identified as M & P) in a city (not Springfield) within the same general area as Crane. When asked why he had contacted those attorneys, Tripp said that he had understood that they represented defendants 'who were having trouble on their claims' and that they (M & P) 'could and would help me.' According to Tripp (neither M nor P testified), he told P on September 23 that he (Tripp) had found of record in Henry County the deed of trust of June 22 and 'that with this four-month period facing me, I would have to force them (Anderson-Haley) into bankruptcy, 2 and he (P) advised me that if I would not rock the boat, they (M & P) would contact Haley and get something worked out, and I told him (P) then that I would wait a day or two.'
On September 25, 1959, P called Tripp over long distance and 'wanted to know if I (Tripp) had made up my mind about starting bankruptcy proceedings against Anderson-Haley,' to which Tripp replied that 'by five o'clock I would give him my answer as to whether (plaintiff) was going to start the bankruptcy proceedings or let them (M & P) try to get us some security and work it out.' On the same day, Tripp conferred with and employed attorneys in Springfield (herein identified as W & E), who thereafter represented plaintiff in protracted negotiations with M & P. The positive and undisputed testimony of Tripp and of attorneys W & E was that attorneys M & P said, from time to time, that they were representing defendants and had conferred with their clients on several occasions concerning the matters under discussion. Since the relationship of attorney and client is essentially one of agency [Henderson v. Cape Trading Co., 316 Mo. 384, 392, 289 S.W. 332, 334(9)], it is recognized that neither the agency of attorneys M & P nor the scope of their authority could be established by their unsworn statements. See cases collected in 23A West's Missouri Digest under Principal and Agent, k22(1). However, grudging admissions wrung from defendants themselves were sufficient, we think, to have permitted a finding that, at all times and in all things here material, M & P were acting as defendants' agents and attorneys and within the scope of their authority as such.
During the period from September 25 to October 21, 1959, there was a running exchange of long distance telephone calls between plaintiff's attorneys W & E and defendants' attorneys M & P. These discussions obviously proceeded upon the accepted premise that an effective involuntary petition in bankruptcy could be filed against Anderson-Haley [11 U.S.C.A. Sec. 95]; that such petition would be filed on or before October 21, 1959, unless in the meantime Anderson-Haley's indebtedness to plaintiff was secured adequately; and that, if Anderson-Haley were adjudicated a bankrupt, the lien of the deed of trust of June 22 would be avoided and defendants thereby would be reduced to the status of common, unsecured creditors. In the initial conversation between plaintiff's attorney W and defendants' attorney M on September 25, M commented that bankruptcy should be avoided. W agreed but insisted that plaintiff 'wanted its money the same as (defendants) wanted their money.' Whereupon, M 'said that there was no money, no cash, but that he believed he could find some equipment as security for our client (plaintiff) if we would give him a reasonable length of time to work it out.'
On September 29, plaintiff's attorney E talked with defendants' attorney M, who stated that defendants 'had two trailers and one tractor down at Crane that had been transferred from Clinton to Crane' and that 'an arrangement could be worked out and security could be given' for Anderson-Haley's indebtedness to plaintiff. E asked for a note secured by chattel mortgage on the tractor and one of the trailers. 'At first, M agreed that would be satisfactory, but he then said he would check with his clients (defendants) and also with Haley, and then would give me an answer in a few days.' In a subsequent conversation between E and M 'a few days later, a day or two later,' M reported 'that he had checked with these gentlemen and that they could not give us a chattel on the tractor but could and would give us * * * a chattel on the trailer * * * that the trailer was in good condition and was refrigerated * * * and that they considered that as adequate security' for plaintiff's account. At that time, E and M 'agreed that would be the arrangement, that is, the chattel mortgage would be executed on this trailer, and the title obtained from Mr. Haley.' M represented that title to the trailer 'was clear' and 'had never been touched, and that Mr. Haley had that title.'
This agreement for execution of a note and chattel mortgage covering one of the trailers was confirmed early in October in another long distance telephone coversation (this time between plaintiff's attorney W and defendants' attorney P), in which P said that the two trailers would be made available for personal inspection by plaintiff's manager Tripp and that, after such inspection, 'a note and chattel mortgage on the equipment of his choice' would be executed. Tripp did inspect the two trailers at Crane about the middle of October, copied the serial number of one of those trailers (the trailer here in controversy), and took that information to plaintiff's attorney E in Springfield for use in preparation of a chattel mortgage. E then called defendants' attorney M 'to make the final arrangements for getting both the title to the trailer and Mr. Haley' to M's office where the note and chattel mortgage were to be executed and the title to the trailer was to be delivered. M said that title 'was in the name of * * * Anderson-Haley' and repeated that it 'was free and clear.' M also told E that the title was in M's office; and, without objection, E testified that he 'understood * * * we were to get the title as soon as the chattel mortgage was signed' so that the mortgage lien could be noted on the face of the certificate. Furthermore, among the exhibits in evidence we find a memorandum by E's secretary recording the fact that on October...
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