Malloy v. Sweazea

• Decision Date: 19 February 1907
• Citation: 123 Mo. App. 179,100 S.W. 503
• Parties: MALLOY v. SWEAZEA.
• Court: Missouri Court of Appeals

100 S.W. 503

123 Mo. App. 179

MALLOY v. SWEAZEA.

St. Louis Court of Appeals. Missouri.

February 19, 1907.

CHATTEL MORTGAGES—PROVISIONS OF MORTGAGE—BREACH BY MORTGAGEE—COUNTERCLAIM—PROOF.

Where defendant pleaded, as a counterclaim in an action on a note, damage by plaintiff's refusal to permit him to market certain cattle mortgaged to secure the note, as provided by the mortgage, but the proof showed that when defendant desired to ship the cattle the market was low, owing to a strike, and that plaintiff did not refuse to permit shipment of the cattle, but only advised against it, defendant could not recover on the counterclaim.

Appeal from Circuit Court, Carter County; W. N. Evans, Judge.

Action by M. A. Malloy against A. D. Sweazea. From a judgment for plaintiff, defendant appeals. Affirmed.

Clark & Sheets, for appellant.

GOODE, J.

This is an action to recover the balance due on a promissory note, originally given October 1, 1902, for $1,500, due two years after date, and bearing interest at the rate of 8 per cent. per annum. Five credits had been entered on the note, so that the balance sued for was reduced to $711.75. The petition is in the ordinary form. The answer admitted the execution of the note and then set up three counterclaims against plaintiff. Each of these counterclaims demanded judgment for a specific item of damages, alleged to have been suffered by defendant in consequence of plaintiff's breach of a certain verbal contract between the parties in reference to the subject-matter of the mortgage given to secure the note. The main allegations of the counterclaims are, in substance, that the note was given for the purchase price of 60 head of thoroughbred cattle, and was secured by a chattel mortgage on the cattle; that after the execution of the chattel mortgage and note it was agreed between the parties that, at any time the defendant might desire during the existence of the mortgage, he should have the privilege of shipping the cattle to the nearest market, or the market defendant might select, and selling the cattle in said market, provided defendant shipped them in the name of plaintiff and allowed him to collect the proceeds and apply the same on the note, paying the residue to defendant; that pursuant to this agreement, on or about the 1st day of August, 1904, defendant had 68 head of cattle, being those covered by the mortgage and their increase, which he desired to sell at the National Stockyards at East St. Louis, Ill., and it was agreed on said date between him and plaintiff that defendant should ship the cattle to said market under the terms of their contract for shipment made "at the time of the execution of said chattel mortgage"; that plaintiff requested defendant to drive the cattle to Piedmont, Mo., ship them from there over the St. Louis & Iron Mountain Railroad, and turn over the bill of lading to the Exchange Bank at Piedmont for collection of the proceeds of the sale of the cattle; that in obedience to plaintiff's direction defendant drove the cattle to Piedmont from his home in Carter county, a distance of 20 miles, and on arriving at Piedmont, plaintiff, without any just cause or excuse, refused to allow defendant to ship the cattle, and notified the bank not to receive the bill of lading without plaintiff's consent in writing, telling defendant that if he shipped he would be liable to a criminal prosecution. In the first counterclaim, after reciting the facts aforesaid, defendant...