Menefee v. Scally

• Decision Date: 08 January 1923
• Docket Number: No. 14545.,14545.
• Citation: 247 S.W. 259
• Parties: MENEFEE v. SCALLY et al.
• Court: Missouri Court of Appeals

247 S.W. 259

MENEFEE v. SCALLY et al.

No. 14545.

Kansas City Court of Appeals, Missouri.

January 8, 1923.

Rehearing Denied January 29, 1923.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially published."

Replevin by John W. Menefee against Nellie Scally and William C. Moore. From a judgment for plaintiff, defendant last named appeals. Reversed, and remanded for new trial.

Fred A. Benz, of Sedalia, for appellant.

W. D. Steele and D. E. Kennedy, both of Sedalia, for respondent.

TRIMBLE, P. J.

This action in replevin involves the right to the possession of the household goods and furniture used in an apartment house in the city of Sedalia.

The defendant Nellie Really leased the house from plaintiff at a rental of $100 per month, payable in advance on the first day of each month, for a term beginning May 3, 1921, and ending October 1, 1925. She bought the household goods and furniture and with them furnished the house. After running the house for a time, she became slow in making her payments and, during July and August, 1921, plaintiff sought to have her give him security for the payment of his rent, and she promised to give him a chattel mortgage on the furniture for this purpose. After putting the matter off from time to time with various excuses, she finally, on September 5, 1921, gave him a chattel mortgage on the furniture to secure the payment of the monthly sums of rent due on the first day of each month under her lease A failure to pay any monthly installment of rent when due was made a default in the conditions of the mortgage, for which plaintiff could take possession of and foreclose and sell the furniture. This chattel mortgage was duly filed in the recorder's office on September 6, 1921. The rent due September 1 was already due and unpaid and on October 1 Mrs. Scally defaulted in the payment of the rent on that date.

The defendant William Moore was one of the roomers in the apartment house; and Mrs. Scally, on August 30, 1921, gave him a chattel mortgage on the aforesaid personalty for $300, which was recorded on the same day, being given and filed some five or six days prior to plaintiff's mortgage. It seems that on September 6, 1921, the day after she gave plaintiff his chattel mortgage, she turned possession of the house and furniture over to Moore and immediately left the state and has never returned, service upon her being obtained by publication.

When default was also made in the October rent, plaintiff discovered she was gone and found Moore in possession. On October 5, 1921, not being able to obtain his rent, plaintiff brought a landlord's suit for possession of the house against Mrs. Scally and Moore, and the next day brought this action in replevin and under the writ took possession of the personal property. On October 12, judgment for possession of the house was given plaintiff in the landlord's suit, and Moore was ejected.

The petition herein was in the ordinary form of replevin for possession of the goods under the chattel mortgage to plaintiff, the conditions of which had been broken, with an allegation that the defendants had wrongfully taken possession of the goods and unlawfully detained them to plaintiff's damage in the sum of $300. Judgment was asked for possession of the goods and $300 damages.

Defendant Scally made no appearance and filed no answer. Defendant Moore filed answer admitting that, at the time of the issuance of the writ he was in possession of the property sought to be replevined, but denied every other allegation.

He then set up his chattel mortgage as a prior incumbrance thereon, under and by virtue of which he was entitled to, and had the right of possession of, the goods in controversy; wherefore he asked that possession thereof be restored to him with damages for the taking of them from him.

To this answer plaintiff filed reply denying that Moore was entitled to, or had the right of possession of, the goods, denying that he had a prior chattel mortgage thereon, but stating that, if he had, it was in fraud of the debt due plaintiff, for the reason that Moore was on October 5, 1921, the agent of Mrs. Scally and as such collected rents from the premises she occupied under plaintiff's lease; that she owed plaintiff the rent for each of the months of August, September, and October, 1921; and that Moore promised and agreed to pay said rents out of the rents he had collected and would from time to time collect for her and as her agent, wherefore he was estopped from asserting a prior lien on said personal property. The reply further asserted that, if defendant Moore has a chattel mortgage on said personal property. plaintiff had no information concerning same, but denies that said chattel mortgage, if such exists, is prior to the mortgage held by plaintiff.

After a trial, the jury returned a verdict on February 21, 1922, finding that plaintiff "was entitled to the possession of the property in question as against the defendant William Moore, and that plaintiff has a special interest in the property in the sum of $350." Judgment was thereupon entered in plaintiff's favor far possession of the goods with a special interest therein of $300 and for costs. The defendant appealed.

It seems that on the same clay the landlord's suit for possession was brought, to wit, on October 5, 1921, defendant Moore advertised the furniture for sale under foreclosure of his chattel mortgage on October 17th, and on that day the form of a sale was gone through with at the front door of the apartment house, but as the house and goods were then in the possession of plaintiff, defendant could not deliver the goods sold to the purchaser.

When plaintiff discovered that Mrs. Scally had left,. he found Moore in charge of the house, and, according to plaintiff's evidence, Moore told him he had been left in charge by Mrs. Scally as her agent, with authority to collect the rent from the roomers and pay it over to plaintiff on his rent, that he was collecting the rent from the roomers but had not yet secured enough to pay all of the rent due plaintiff, that he was staying there for Mrs. Scally to look after the premises,, to collect the rent from the roomers and to pay plaintiff's rent as it became due, and that he would pay plaintiff his rent. He never paid plaintiff anything, however, and so the landlord's suit for possession of the house and the replevin for possession of the goods were brought.

Defendant Moore denied that he ever told plaintiff he was in possession as Mrs Scally's agent or that he would collect the rent from the roomers and pay it on plaintiff's rent. It is hard to reconcile the statements made by defendant regarding the...