Missouri Fire Clay Works v. Ellison

• Decision Date: 27 March 1888
• Citation: 30 Mo.App. 67
• Parties: MISSOURI FIRE CLAY WORKS, Respondent, v. WILLIAM ELLISON, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 67

MISSOURI FIRE CLAY WORKS, Respondent, v. WILLIAM ELLISON, Appellant.

Court of Appeals of Missouri, St. Louis.

March 27, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

SMITH P. GALT, for the appellant: The court erred in admitting testimony of plaintiff's witness Shea. The amount of damages was the question for the jury to decide, not the witness. The court erred in excluding defendant's testimony, offered of any and all proceedings in the mechanic's lien suit of Ellison et al. v. Missouri Fire Brick Company, and the sheriff's sale and deed to Ellison thereunder of the premises in question, and in giving instruction number one for plaintiff, which embodies the theory under which the court tried the case. Rev. Stat., secs. 3172, 3174, 3178, 3193. " These statutes are highly remedial in their nature and should receive a liberal construction to advance the just and beneficent objects had in view in their passage." De Witt v. Smith, 63 Mo. 266. Ellison & Son, between May 18 and August 24, 1883, furnished to said company the materials and performed the work set forth in their mechanic's lien, prosecuted the same to judgment and sale, and received a sheriff's deed November 20, 1885. Plaintiff's trustee's deed was executed December 22, 1885. Therefore the mechanic's lien was preferred under our statutes and the law to the deed of trust. Thomas v. Davis, 76 Mo. 72; O'Brien v. Hanson, 9 Mo.App. 545; Goodin v. Elleardsville, 5 Mo.App. 289; Reilly v. Hudson, 62 Mo. 383; Hall v. Planing Mill Co., 16 Mo.App. 454; Hydraulic Press Brick Co. v Bormans, 19 Mo.App. 664; Planing Mill Co. v Bormans, 19 Mo.App. 671; Douglass v. Zinc Co., 56 Mo. 388; Brooks v. Railroad, 101 U.S. 443; In matter of Diekel's Estate, 1 Pearson (Pa.) 213; Neilson v. Railroad, 44 Iowa 71; Conrad v. Sarr, 50 Iowa 470; Welch v. Porter, 63 Ala. 232. The court erred in its instruction number three for plaintiff, in telling the jury thereby that " if the defendants or either of them took them (the goods and chattels) or any of them from the premises, and converted them to their own use, then your verdict should be for the plaintiff and against the defendant, William Ellison," etc. The defendant could not be held liable for the acts of Joseph Ellison.

GEO. D. REYNOLDS and WM. S. RELFE, for the respondent: The court committed no material error in admitting the testimony of witness Shea, in answer to the questions of the court as to the amount of damage to the floor. The failure of the court to erase the letter " s" from the word " defendants," and the words " or either of them," etc., from the third instruction, was a mere oversight and not an error that prejudiced appellant. For the purposes of this case, it makes little difference and was not a material issue in it, as to whether the articles removed were " fixtures" or not. Reiley v. Hudson, 62 Mo. 383. Instruction number one is good law, and the action of the court in excluding the deed and record of proceedings in the lien suit was correct.

OPINION

THOMPSON J.

This action is for damages occasioned by the alleged trespass of William Ellison and his son and partner, Joseph Ellison, in unlawfully breaking into premises of respondent and unlawfully and violently injuring the realty, and removing therefrom a lot of chattels there situated and converting them to their own use. The petition on which the case was tried consists of two counts, the first for damages to the realty, the second for the conversion of chattels. In each count the damage is laid at eight thousand dollars.

As appears by the bill of exceptions, there was a total failure of evidence connecting the defendant, Joseph Ellison, with the alleged trespass, and the court, at the close of the evidence, instructed the jury to that effect, whereupon plaintiff took a nonsuit as to him, with leave, etc.

The history of the case, as shown by a joint bill of exceptions embracing evidence admitted and excluded, was substantially as follows: The Missouri Fire Brick Company, of Franklin county, being the owner of the premises described in the second amended petition, in September, 1882, began the erection thereon of a large building, fitted with boiler, engine, and other heavy machinery connected therewith, for the purpose of manufacturing fire brick. William Ellison & Son prosecuted a mechanic's lien suit for their account for work, materials, and machinery, claimed to have been done and furnished for that building, and obtained a special judgment therefor against the premises and the building and improvements thereon; and upon a sale thereunder, William Ellison became the purchaser thereof, and obtained his sheriff's deed therefor on November 20, 1885. Between the date of the judgment and the sheriff's sale, the building was entirely consumed by fire, leaving upon the ground unconsumed, but attached thereto, the engine, boiler, and other iron fixtures therein. While the building was in process of construction, but before Wm. Ellison & Son began furnishing any of the items of said account, said company gave a deed of trust upon said real estate to secure an indebtedness owing by it. There was a sale thereunder by the trustee therein, and the plaintiff obtained a trustee's deed therefor on December 22, 1885.

This suit was brought by the plaintiff against William Ellison and Joseph Ellison, to recover damages alleged to have been sustained by reason of their removing the engine, etc., from the premises, and injuring the premises in so doing, after William Ellison had obtained his deed therefor, upon the theory that, because the deed of trust was prior to any of the items in the mechanic's lien, it took precedence thereof, and Ellison had no rights under his sheriff's deed, as against the claims of the plaintiff, a purchaser under the deed of trust. Plaintiff's theory would seem to have been sustained by the trial court. There was a verdict and judgment for the plaintiff against the defendant William Ellison, in the sum of two hundred dollars, on the first count, and one thousand dollars on the second count of the petition.

I. At the trial the plaintiff offered in evidence a deed of trust, purporting to have been made by Missouri Fire Brick Company to Charles F. Lachmund, trustee, conveying the real estate mentioned in petition, dated January 13, 1883, and recorded in the recorder's office of Franklin county, Missouri, January 16, 1883. The defendant objected to this as incompetent, for the following reasons, stating them separately: (1) Because it is not under seal; (2) because it does not purport to be under the seal of the company; (3) because no authority is shown for its execution; (4) because it is not signed by the company, and does not purport to be so signed; (5) because the acknowledgment purports to be made by the company, and is not sufficient to entitle it to be recorded. The court overruled these objections, and the defendant excepted. The deed purports to be the deed of the company, and is signed as follows: " Missouri Fire Brick Company, by J. R. Trusdale, Sec. and Treas. (seal). Henry Keszler, President. (seal). C. F. Lachmund, trustee. (seal)." Then, to the left of these names is the word " seal" written within a scroll. It is acknowledged before a notary public, and the acknowledgment recites that the Missouri Fire Brick Company, by Henry Keszler its president, and Jno. R. Trusdale, its " Sec. & Treas.," personally came before the officer, etc. This makes it a good deed of the corporation. The word " seal," in a scroll standing to the left of the three signatures, may well be regarded as the seal of the corporation; the acknowledgment is otherwise in proper form under the law as it stood prior to the date when the act of April 2, 1883, took effect; authority on the part of the president and secretary to execute a deed for the corporation need not be affirmatively shown by a party claiming under the deed, but, in the absence of evidence to the contrary, such authority is presumed. This objection was rightly overruled.

II. The plaintiff then offered in evidence said trustee's deed to the plaintiff, dated December 22, 1885, conveying said premises to the plaintiff. The defendant objected to it as incompetent, because the deed of trust says the sale shall be had in the city of Pacific, and the sale purports to have been made in the town of Pacific; and because the advertisement purports to have been made in the city of Pacific, and the advertisement calls for the sale to be made between nine a. m. and six p. m., and the deed of trust requires that the time shall be stated in the advertisement, and there is nothing in this deed purporting to show that the sale was made between those hours; and because the deed of trust requires that the advertisement shall be published in some newspaper printed and published in the city of Pacific, and the affidavit shows that the newspaper is merely published in Pacific, and there is nothing to show that it is printed there. The objection was overruled, the defendant then and there excepting. The deed was then read in evidence. These objections were rightly overruled. The variances were not substantial. The objection grounded on the variance between the word " city" and " town" was frivolous, since the identity of the place is not questioned.

The deed of trust does not require the advertisement to be published in some newspaper printed and published in the city of Pacific, but in some newspaper printed in the city of Pacific. This was intended to guard against its being published in some newspaper whose place of publication was elsewhere. It is well known that the business of printing and publishing newspapers has so advanced within recent years that country...