Mohn v. Zahner Mfg. Co., 22822

• Decision Date: 03 November 1958
• Docket Number: No. 22822,22822
• Citation: 319 S.W.2d 18
• Parties: Charles MOHN d/b/a Charles Mohn Sales Company, Respondent, v. ZAHNER MANUFACTURING COMPANY, a corporation, Appellant.
• Court: Missouri Court of Appeals

Page 18

319 S.W.2d 18

Charles MOHN d/b/a Charles Mohn Sales Company, Respondent, v. ZAHNER MANUFACTURING COMPANY, a corporation, Appellant.

No. 22822.

Kansas City Court of Appeals, Missouri.

Nov. 3, 1958.

Jay L. Oldham, Kansas City, for appellant.

Southall & Southall, by R. J. Southall, Kansas City, for respondent.

CAVE, Judge.

This is an appeal from a judgment of the circuit court in favor of plaintiff and against the defendant in the sum of $135 for the conversion of a 'meat chopper'.

The cause was tried to the court without a jury. Plaintiff's petition was in the usual form, and defendant's principal defense was that the conditional sales contract relied on by plaintiff was void because it had not been recorded. The transactions hereinafter related took place in the State of Kansas and the law of that state applies.

It appears that on June 13, 1955, plaintiff was the owner of a used Stimson meat chopper, and on that date he sold and delivered it to one George Carter, who executed a conditional sales contract wherein he promised to pay the sum of $135 for said item at certain times specified in the contract. On June 15th, two days later, the defendant sold a number of items of restaurant equipment to the said George Carter, who executed a chattel mortgage to the defendant specifically describing the items that had been purchased from the defendant. The chattel mortgage also contained this provision: 'And it is expressly understood and agreed that this mortgage shall include any property acquired hereafter, whether purchased from the Zahner Mfg. Co., or otherwise, acquired for use on or in connection with any of the above described property'. (Italics supplied.)

Carter defaulted on the payments due under the chattel mortgage and the conditional sales contract, and on July 30, 1955, defendant took possession under its chattel mortgage of the items it had sold to Carter, and also that meat chopper. Plaintiff made demand for return of the meat chopper but defendant refused, and this suit followed.

It is conceded that the conditional sales contract was not recorded, and defendant contends that, for that reason, the contract is void, citing Section 58-314, General Statutes of Kansas, 1949. This statute does provide that if such a conditional sales contract is not recorded it 'shall be void as against innocent purchaser, or the creditors of the vendee, * * *'. (Italics supplied.) It is conceded that defendant is not an innocent purchaser. Consequently, that provision of the statute is inapplicable. The other clause, 'or the creditors of the vendee', has been construed by the courts of Kansas to be applicable only to those creditors who have acquired a lien on the property and not merely to general creditors. Wyatt v. Duncan, 149 Kan. 244, 87 P.2d 233; Dixon v. Tyree, 92 Kan. 137, 139 P. 1026; Great Western Stage Equipment Co. v. Iles, 10 Cir., 70 F.2d 197; and Big Four Implement...