Morris Plan Co. v. Universal Credit Co.

• Citation: 168 S.W.2d 136,237 Mo.App. 365
• Parties: Morris Plan Company, a Corporation, Respondent, v. Universal Credit Company, a Corporation, Appellant
• Decision Date: 11 January 1943
• Court: Court of Appeals of Kansas

168 S.W.2d 136

237 Mo.App. 365

Morris Plan Company, a Corporation, Respondent, v. Universal Credit Company, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

January 11, 1943

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge, Judge.

Affirmed.

Edward S. North for respondent.

(1) Defendant's motion for a new trial did not properly raise the question. It merely alleged "that the court erred in admitting irrelevant, incompetent and prejudicial evidence offered by the plaintiff over the objections and exceptions of the defendant." Such an assignment is not sufficient to apprise the trial court of the error complained of, and therefore cannot form the basis of an assignment of error on appeal. Wheeler v. Cantwell, 140 S.W.2d 744, 749; Raifeisen v. Young, 183 Mo.App. 508, 510; Huttig Sash & Door Co. v. Ray R. Rosemond Co., 65 S.W.2d 180; Maplegreen Co. v. Trust Co., 237 Mo. 350, 359; Martin v. Connor, 233 Mo.App. 1042; Bank v Major, 229 Mo.App. 963; Rogers v. Davis, 194 Mo.App. 388; Moffett Bros. v. Kent, 5 S.W.2d 395. (2) Since defendant did not offer a general demurrer to the evidence in the trial court, it cannot now raise the question of lack of evidence. Our statute requires that any such requested instruction must be in writing. R. S. Mo., 1939 sec. 1118. The refusal of an oral request is not error. Dusky v. Kansas City, 58 S.W.2d 768; Sutton v Kansas City Star Co., 54 S.W.2d 454; Lintz v. Atlantic Life Ins. Co., 49 S.W.2d 675. (3) Point (3), as stated by defendant, is a mere abstract statement of law applicable only as between defendant and Mary Palmer; and that said point and the authorities cited in support thereof have no bearing upon the facts in this case. For the law applicable to the facts in this case we refer the court to the authorities cited under points (1) and (2) of this brief. (4) The court based its decision upon a finding that defendant purchased the conditional sale agreement "with the knowledge that the car would be sold by Palmer Motor Company in the ordinary course of business." Therefore, this point does not raise any error on the part of the trial court. Glaus v. Gosche, 118 S.W.2d 42; Gibson v. McIntire, 110 Iowa 417; 8 Corpus Juris, 479.

Harry B. Jenkins for appellant.

(1) The court erred in admitting incompetent, irrelevant, improper and immaterial evidence offered by plaintiff over the objection of defendant. Remmers v. Remmers, 217 Mo. 541, 117 S.W. 1117; Crim v. Crim, 162 Mo. 544, 63 S.W. 489; 54 L. R. A. 502, 85 Am. St. Rep. 521; Coal & Coke Co., 217 Mo. 142, 117 S.W. 61; Farmers State Bank of Greentop v. Sloop, 200 S.W. 304; Aurora Water Co. v. City of Aurora, 129 Mo. 440, 31 S.W. 946; Wharton v. Mo. Car Foundry Co., 1 Mo.App. 577; Chitwood v. Russel, 36 Mo.App. 245; Merchants' Natl. Bank v. Brisch, 154 Mo.App. 631, 136 S.W. 28; Biddlecome v. General Accident Assur. Corp., 167 Mo.App. 581, 152 S.W. 103; Kansas City Breweries Co. v. Haffey, 193 Mo.App. 349, 186 S.W. 36; Antrim Lumber Co. v. Daly, 190 S.W. 971; Hellrung v. Viviano, 7 S.W.2d 288; Dexter v. MacDonald, 196 Mo. 373, 95 S.W. 359; Neville v. Hughes, 104 Mo.App. 455, 79 S.W. 735; Clark v. Diffenderfer, 31 Mo.App. 232; Standard Mfg. Co. v. Hudson, 113 Mo.App. 344, 88 S.W. 137; J. B. Colt Co. v. Farmer, 286 S.W. 399; Bank of Dearborn v. Gabbert, 221 Mo.App. 923, 291 S.W. 142; Robinson & Co. v. Ligon, 146 Mo.App. 634, 124 S.W. 590; Burns v. Limerick, 178 Mo.App. 145, 165 S.W. 1166; Davis v. Cramer, 188 Mo.App. 718, 176 S.W. 468; Inge v. Hance, 29 Mo. 399; McCluer v. Home Ins. Co., 31 Mo.App. 62; Cockrill v. Kirkpatrick, 9 Mo. 697; Chrisman v. Hodges, 75 Mo. 413; Koehring v. Muemminghoff, 61 Mo. 403, 21 Am. Rep. 402; Henshaw v. Dutton, 59 Mo. 139 (affirmed 67 Mo. 666); Helmrichs v. Gehrke, 56 Mo. 79; State ex rel. W. L. Morrison Inv. Co. v. Trimble, 301 Mo. 146, 256 S.W. 171 (quashing certiorari, 1922); Sandbrook v. W. L. Morrison Inv. Co., 209 Mo.App. 600, 239 S.W. 543; Hunt v. Weed, 65 Mo.App. 529; Samuel Hass Trimmed Hat Co. v. Service Assn., 297 S.W. 129; Owsley v. Jackson, 163 Mo.App. 11, 144 S.W. 154; Lefler v. New York L. Ins. Co., 143 F. 814, 74 C. C. A. 488; Graham v. Savage, 110 Minn. 510, 513, 126 N.W. 394, 136 Am. St. Rep. 527, 19 Ann. Cas. 1022; Burke v. Walton, 86 S.W.2d 96; Fischman-Harris Realty Co. v. Kleine, 82 S.W.2d 605; Farmers' Bank of Weatherby v. Redman (Mo. App.), 24 S.W.2d 235; Universal Credit Co. v. O'Neal (Tex.), 140 S.W.2d 596; Manchester State Bank v. Elmo (Kan.), 241 P. 118; 21 C. J. 1067, pars. 25, 26; 21 C. J. 1074, 1088, par. 68; 1091, par. 70; 1091, par. 74; Steele v. Culver, 158 Mo. 136; Layson v. Cooper, 174 Mo. 211, 73 S.W. 472; Tyler v. Hall, 106 Mo. 313; 32 C. J. S. 851, 922, 923; 21 C. J. 1089, 1103, par. 99; 1104, par. 100; 1107, par. 103; Employers' Indemnity Corp. v. Garrett, 38 S.W.2d 1053; Baptiste Tent & Awning Co. v. Uhri, 129 S.W.2d 11; Gates Hotel Co. v. Federal Investment Co., 52 S.W.2d 1018; Crossan v. Noll, 120 S.W.2d 189; 22 C. J., par. 1726; Jordan v. Daniels, 27 S.W.2d 1056; Soutier v. Kellerman, 18 Mo. 509; Southwestern Freight & Cotton Press Co. v. Stanard, 44 Mo. 71, 100 Am. Dec. 255; Turner v. Morris, 222 Mo. 21, 142 Mo.App. 238, 125 S.W. 9; Kimball v. Brawner, 47 Mo. 398; Harbaugh v. Ford Roofing Products Co., 281 S.W. 686; Keller v. Meyer, 74 Mo.App. 318; Goodfellow's Ex'rs v. Meegan, 32 Mo. 280; Miller v. Dunlap, 22 Mo.App. 97; Wolff v. Campbell, 110 Mo. 114, 19 S.W. 622; State ex rel. Chicago, M. & St. P. Ry. Co. v. Pub. Serv. Comm. of Mo., 260 Mo. 63, 180 S.W. 377; Porterfield v. Am. Surety Co. (N. Y.), 201 Mo.App. 8, 210 S.W. 119; Edmonds v. Cochrane, 226 S.W. 1007; Laster v. R. & V. Motor Co., 219 Mo.App. 211, 269 S.W. 665; Porterfield v. Am. Surety Co., 210 S.W. 119, supra; Manchester Bank v. Elmo (Kan.), 241 P. 118, supra; Murphy v. Holliway, 16 S.W.2d 113; Porterfield v. Am. Surety Co., 201 Mo.App. 8, 210 S.W. 119. (2) The Universal Credit Company gave no implied or express consent to sell the used car, and its conditional sale contract of record gave it a prior lien. 47 A. L. R., 997; 7 Blashfield, 239; 88 A. L. R., 122; Commercial Credit Co. v. Hardin, 300 S.W. 434; Drew v. Feuer, 210 N.W. 114; C. I. T. Corp. v. Hume, 48 S.W.2d 155; Sorenson v. Pagenkopf, 101 P.2d 928. (3) Even though the defendant, Universal Credit Company, consented to the sale of the automobile in question, it did not waive its lien because the proceeds of such sale were to be applied to the indebtedness. Hart v. Farmers' Bank of Bates County, 28 S.W.2d 124; Osborn v. Standard Security Co., 4 S.W.2d 503; Bruce v. Kays, 1 S.W.2d 217; Forgan v. Bridges, 281 S.W. 136. (4) Since the Eastwood note under which the Morris Plan Company claimed is non-negotiable, the Morris Plan Bank stand in the shoes of its endorser, Mary Palmer, and is subject to all equities and defenses which may be made as against Mary Palmer. 8 C. J., 55; 3 R. C. L., 1065; Morgan v. Mulcahy, 298 S.W. 242; Universal Credit Co. v. Enyart, 98 S.W.2d 121; C. I. T. Corp. v. Hume, 48 S.W.2d 154; Bishop v. Chase, 156 Mo. 158, 173; 10 C. J. 437; Nelson v. Southworth, 144 P. 835; Riggs v. Latham, 13 P. 179; George v. Surkamp, 76 S.W.2d 369; Krizek v. Treybal, 155 S.W.2d 385; Dowling v. Grand Ave. Bank, 267 S.W. 1; Bank of Ozarks v. Hanks, 125 S.W. 224; Bank v. Gunter, 67 Kan. 227; Sykes v. Bank, 78 Kan. 688; Bank v. Heslet, 84 Kan. 315.

Boyer, C. Sperry, C., concurs.

OPINION

BOYER

Action for the conversion of an automobile. By the terms of the petition plaintiff's claim is based upon its alleged ownership of a promissory note for the sum of $ 454, and a chattel mortgage upon the automobile in question to secure the payment of said note, all executed by one Eastwood, owner of the car at the time; that the note and chattel mortgage were executed in favor of Palmer Motor Company of Paola, Kansas, and for the benefit of it and its assigns, and bear the date of February 19, 1938; that plaintiff purchased said note for value before maturity on or about February 20, 1938, and same was endorsed by Palmer Motor Company to the order of plaintiff; that it was delivered to plaintiff who has ever since been the owner thereof; that by removal of the car from Miami County, Kansas, plaintiff under the terms of the mortgage was entitled to immediate possession; "that the motor car aforesaid came into possession of defendant on or about March 19, 1938, who then and there or thereafter and prior to the date of the filing of this action unlawfully converted the same to its own use." The value of the car was alleged and plaintiff prayed judgment for $ 499.40, together with interest from the date of conversion.

The answer was a general denial of every allegation in the petition, and a plea that defendant was the owner of the automobile in question as mortgagee on May 24, 1937, and subsequent thereto; that the mortgage was duly filed of record on May 27, 1937, in Miami County, Kansas; that said mortgage was executed by Mary Palmer, a resident of Miami County, Kansas, and that it was filed in conformity with the statutes of Kansas; that at the time the mortgage was executed the automobile was located in Miami County, Kansas; that on March 19, 1938, the mortgage under which defendant claims was in default and defendant was entitled to the immediate exclusive possession of said automobile.

The dominant question in the case was that of priority of lien between the chattel mortgage under which plaintiff claims and a conditional sale contract under which defendant claims as mortgagee.

The case was tried before the court without a jury. The court marked "given" separate findings of fact and conclusions of law requested by the plaintiff. The defendant made no similar request for findings and conclusions to be stated separately in writing. The...