Metzger v. Columbia Terminals Co.

• Decision Date: 07 June 1932
• Docket Number: No. 21738.,21738.
• Citation: 50 S.W.2d 680
• Parties: EDWARD METZGER, APPELLANT, v. COLUMBIA TERMINALS COMPANY, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

50 S.W.2d 680

EDWARD METZGER, APPELLANT, v. COLUMBIA TERMINALS COMPANY, A CORPORATION, RESPONDENT.

No. 21738.

St. Louis Court of Appeals. Missouri.

Opinion filed June 7, 1932.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Granville Hogan, Judge.

REVERSED AND REMANDED.

H.F. Russell for appellant.

(1) The trial court erred in overruling plaintiff's motion for new trial. (See citations and authorities under 2.) (2) The trial court erred in rendering judgment for defendant. Section 3097, Revised Statutes 1929, contains the following language: "When the same (chattel mortgage), or copy thereof, shall have been filed, as above provided, shall thenceforth be notice of the contents thereof to all the world." "After condition of payment in a chattel mortgage is broken, the mortgage may take possession and replevin the mortgaged property, wherever he finds it, the property being his." Leavel v. Johnston, 232 S.W. 1064; Exch. Nat. Bank v. Daley, 237 S.W. 846; Lange v. Midwest Securities Co., 231 S.W. 272; Edmonston v. Jones, 69 S.W. 741; Meyer Bros. Drug v. Self, 77 Mo. App. 284; Brunk v. Salinger, 8 S.W. (2d) 88. In the absence of statutory provisions to the contrary, priority of liens arising out of private contracts depends on priority in time, and the first in order of time is prima facie superior to those of a later date. Jaicks v. Oppenheimer, 168 S.W. 216, 175 S.W. 972; Taylor v. Smith, 47 Mo. App. 141; Woolner v. Levy, 48 Mo. App. 469; Stone v. Kelly, 59 Mo. App. 214; Baskin v. Wayne, 62 Mo. App. 515. A mortgagor in possession has no power to create by contract a lien that shall have priority of a duly recorded chattel mortgage. Hampton v. Seible, 58 Mo. App. 181; Sec. 472, Jones on Chat. Mort. (5 Ed.). If a chattel mortgage is recorded (filed), the mortgagee's title is not affected by the retention of the possession of the property by the mortgagor, nor by his removal of it, and if the mortgage is good here it will be good in every State to which the property may be removed. Shapard v. Hynes, 104 F. 449, 45 C.C.A. 271, 52 L.R.A. 675; Flora v. Julesburg Motor Co., 193 Pac. 545, 69 Colo. 238; First National Bank v. Wesson, 109 Okla. 226, 235 Pac. 595; Smith v. Hutchings, 30 Mo. 385; McDaniel v. Bard, 27 Mo. App. 545; United Iron v. Sleepy Hollow Mining Co., 198 S.W. 443; Jones on Chattel Mortgages, secs. 260-260A. The law of the place of contract, when this is also the place where the property is, governs as to the nature, validity, construction and effect of a mortgage. McNichols v. Fry, 62 Mo. App. 13; Lafayette Co. Bank v. Wilson, 29 Mo. App. 384; Jones on Chattel Mortgages, secs. 299 and 300. So, where delivery is regarded as essential to the completion of the contract, it is regarded as made at the place of delivery. 13 C.J., p. 581. The comity between states does not require courts of one State to enforce rights accruing under contracts valid by the laws of another State, if to do so would violate the public policy of the State of the forum as declared by statute, or if its citizens would be injured or prejudiced by giving legal effect to it. Atwater v. A.G. Edwards Brokerage Co., 147 Mo. App. 436, 126 S.W. 823; J.J. Case v. Tomlin, 174 Mo. App. 512; St. Louis S.W. Ry. Co. v. McIntyre, 82 S.W. 346, 36 Tex. Civ. App. 399; Lake Shore Ry. Co. v. Teeters, 77 N.E. 599, 166 Ind. 335; Show Co. v. Randall, 75 Ind. App. 417; Bartlett v. Collins, 85 N.W. 703, 109 Wis. 477. "The lien of the carrier for transportation charges on property received from the mortgagor in possession, with the right to move from place to place, is inferior to that of a mortgage on which the carrier had both constructive and actual knowledge." Owen v. Burlington R.R. Co., 11 S.D. 153, 76 N.W. 302, 74 Am. S.R. 786; 11 C.J., page 652. A common carrier who innocently receives goods from a wrongdoer, without the consent of the owner, express or implied, has no lien upon them for their charges against such owner. A common carrier is bound to receive and carry goods only when offered for carriage by their owner or his authorized agent, and then only upon payment for the carriage in advance, if required. Replevin or trover remedies. Fitch v. Newberry, 1 Doug. (Mich.) 1; Robinson v. Baker, 5 Bush. 137; Van Buskirk v. Purinton, 2 Hall (N.Y.) 561; Collman v. Collins, 2 Hall (N.Y.) 569; 10 C.J., p. 459. Neither can he assert a lien for his services as such carrier. Kinsey v. Leggett, 71 N.Y. 387; Wills on Replevin, section 315, 1907 edition.

Thompson, Mitchell, Thompson & Young and R. Forder Buckley for respondent.

(1) A common carrier receiving goods from one rightfully in possession is entitled to a lien upon the property carried by it for the reasonable value of its services. R.S. 1929, sec. 14233; 10 C.J. 456; Robbins v. C. & A. Ry. Co., 132 Mo. App. 306, 111 S.W. 1179; Sutton v. St. L. & S.F.R. Co., 159 Mo. App. 685, 140 S.W. 76; Hutchinson on Carriers (3 Ed.), sec. 864. 1. This lien covers charges which a connecting carrier has advanced to a preceding carrier. Wells v. Thomas, 27 Mo. 17; Shewalter v. Mo. Pac. Ry. Co., 84 Mo. App. 589; Evans v. C. & A.R. Co., 76 Mo. App. 472; Armstrong v. Chicago etc. R. Co., 62 Mo. App. 639; Moore & Son v. Henry et al., 18 Mo. App. 35; 10 C.J. 457; Hutchinson on Carriers, sec. 867. 2. Where goods are not delivered by the carrier, but the owner takes them from the carrier without the carrier's consent, whether by legal process or otherwise the carrier's lien is not lost. Darlington v. Mo. Pac. Ry. Co., 99 Mo. App. 1, 72 S.W. 122; 10 C.J. 461. (2) A common carrier is bound to accept goods tendered for carriage under penalty of liability for refusal and, like an innkeeper being bound to accept he is entitled to a right of lien coextensive with his duty; and this is true even though the goods be received from a wrongdoer. 1. A common carrier is bound to accept goods for carriage. 10 C.J. 65; Knight v. Quincy R. Co., 120 Mo. App. 311, 96 S.W. 716. 2. An innkeeper, being bound to receive under penalty, is entitled to a lien even though the goods be in the hands of a wrongdoer. Fox v. McGregor, 11 Bark. 41; Manning v. Hollenbeck, 27 Wis. 202; King v. Richards, 6 Whart. 418; York v. Grenaugh, 2 Ld. Ray. 866; Hutchinson on Carriers, secs. 882, 883 and 884; Brodwood v. Granara, 10 Exch. 417; Snead v. Watkins, 1 Com. B. (N.S.) 267; Butler v. Wolcott, 2 Bos. & P.N.R. 64; Proctor v. Nicholson, 7 C. & P. 67. 3. The lien of an innkeeper is superior to that of a chattel mortgagee, even though the mortgage was due when the chattel was brought to the hotel. 11 C.J. 656; Matthews v. Victor Hotel Co., 74 Misc. 426, 132 N.Y.S. 375; Weil Bros., Inc., v. Stern, 136 Misc. 265, 240 N.Y.S. 639. 4. A common carrier is likewise entitled to its lien although the goods be received from a wrongdoer. Case of The Exeter Carrier, referred to in York v. Grenaugh, 2 Ld. Ray. 866; Hutchinson on Carriers, sections 882, 883; Vaughan v. Railroad, 13 R.I. 578. (3) A chattel mortgagee may by his conduct waive his prior lien. 1. Consent by the mortgagee that the mortgaged chattel may be taken from its situs is a waiver of the mortgage against every person except the mortgagor. 11 C.J. 425; Jones on Chattel Mortgages, sec. 260 (a); Hutchinson on Carriers, sec. 885; Adamson v. Fogelstrom, 300 S.W. 841; Hollipeter, Shonyo & Co. v. Maxwell, 224 S.W. 113; Geiser Mfg. Co. v. Todd, 204 S.W. 287. 2. Where the mortgagee permits a mortgaged chattel to remain for an unreasonable period of time in the possession of the mortgagor after condition broken, the lien of a third party then accruing is paramount to the lien of a chattel mortgagee. Jones on Chattel Mortgages, sec. 371; Kirtley v. Morris, 43 Mo. App. 144; Zahner Mfg. Co. v. Harnish, 24 S.W. (2d) 641. 3. Where the mortgagee knows of or consents to some work being done or service performed to the mortgaged chattel, the lien acquired by such service is paramount to the lien of the chattel mortgagee; this consent may be express or implied. 11 C.J. 651; Miller v. Crabbe, 66 Mo. App. 660; Pickett v. McCord, 62 Mo. App. 467; Kirtley v. Morris, 43 Mo. App. 144; Zahner Mfg. Co. v. Harnish, 24 S.W. (2d) 641; Robinson-Hoover Cattle Loan Co. v. Sifferman, 37 S.W. (2d) 974. (4) Even though an initial carrier may not be entitled to a lien, nevertheless, the final carrier is justified in paying the charges of the preceding carrier, which appear regular, and in holding the property for its lien. Berry Coal & Coke Co. v. Chicago, Peoria & St. Louis Ry. Co., 116 Mo. App. 214. (5) A contract for shipment from one State to another State, made in one State and party performed in that State, is governed by the lex loci contractus in determining the validity of the same and the rights and liabilities arising out of it. 4 Elliott on Contracts, sec. 3225, p. 450, and vol. 2, sec. 1192, p. 432; Thompson v. Traders Insurance Co. of Chicago, 169 Mo. 12; The Otis Company v. Mo. Pac. Ry. Co., 112 Mo. 622; Carey v. Schmeltz, 221 Mo. 132, 119 S.W. 946; Herf & Frerichs Chemical Co. v. Lackawana Line, 100 Mo. App. 164, 73 S.W. 346; Hurst v. St. L. & S.F.R. Co., 117 Mo. App. 25, 94 S.W. 794; McKinstrey v. Chicago, Rock Island & Pacific Ry. Co., 153 Mo. App. 546, 134 S.W. 1061; Hartmann v. Louisville & Nashville R.R. Co., 39 Mo. App. 88; James S. Sample v. Verner-Kelley Live Stock Co., 193 Mo. App. 670; Nenno v. St. L. & S.F.R. Co., 105 Mo. App. 540, 80 S.W. 24; Townsend & Wyatt Dry Goods Co. v. U.S. Express Co., 133 Mo. App. 683, 113 S.W. 1061; Lord & Bushnell v. Texas & N.O.R. Co., 155 Mo. App. 175, 134 S.W. 111; 13 C.J. 248 and 257.

NIPPER, J.

This is an action in replevin to recover possession of an Essex automobile. The statement alleges the value of the automobile to be $200, and it is sought to recover the same from the possession of the defendant; the defendant seeks to retain possession on account of certain freight and storage charges.

There was a judgment in favor of defendant and against plaintiff for...