Munday v. Britton

• Decision Date: 05 June 1920
• Citation: Munday v. Britton, 222 S.W. 504, 205 Mo. App. 153 (Mo. App. 1920)
• Parties: R. P. MUNDAY, Respondent, v. HENRY BRITTON, Appellant
• Court: Missouri Court of Appeals

222 S.W. 504

205 Mo.App. 153

R. P. MUNDAY, Respondent, v. HENRY BRITTON, Appellant

Court of Appeals of Missouri, Springfield

June 5, 1920

Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

Lamar & Lamar for appellant.

W. L Hiett for respondent.

STURGIS P. J. Farrington and Bradley, JJ., concur.

OPINION

STURGIS, P. J.--

This suit originated in a justice of the peace court in Texas county, and is for conversion of two mares and a mule colt. The defendant justifies his action in taking possession of said animals and his subsequent appropriation of same to his own use by reason of the foreclosure of a chattel mortgage thereon and his purchase thereunder. The plaintiff is the original owner and mortgagor of the two mares, the mule colt having been born between the giving of the mortgage and its foreclosure.

The principal facts are that the plaintiff induced the defendant to sign as joint maker a note for twenty dollars payable to a bank at Houston, Missouri, and gave him a chattel mortgage on these animals for his protection. The note and mortgage are dated March 10, 1916, and were due and payable sixty days thereafter. The chattel mortgage contains the usual conditions as to the mortgaged property remaining in possession of the mortgagor till default in payment unless the mortgaged property unreasonably depreciates in value or the mortgagor sells or disposes of the same. A day or two after giving this mortgage the plaintiff left Texas County placing the mortgaged property in the care and custody of one Dave Holland under an agreement that Holland was to feed and care for same at $ 12 per month. The defendant's mortgage was not recorded until some two weeks later but Holland had knowledge of same. In a little more than a month after the mortgage was given, and about the same length of time after Holland's possession under the agreement as to feeding and caring for the animals for plaintiff, the defendant demanded and took possession of the animals on the ground that same had greatly depreciated in value, the secured note not yet being due. To get such possession the defendant paid Holland the accrued feed bill then amounting to $ 14.

The plaintiff paid the secured note before it became due. The plaintiff was yet absent and it is not shown that he then knew of defendant's action in having taken possession of the property and paying the feed bill thereon. It appears that a nephew of plaintiff attended to paying off the note and the nephew, being without authority or funds with which to do so and claiming that defendant's action in taking possession of the mortgaged property before the secured debt was due was unwarranted, declined to reimburse defendant for the fourteen dollar feed bill which he had paid in order to obtain such possession.

It appears therefore that at the time the secured note became due it was fully paid by plaintiff although the defendant as mortgagee had taken and was in possession of the mortgaged property on the ground that his liability on such note was endangered by a depreciation in value of such property. The only claim that defendant then had was that he should be reimbursed for the feed bill owed by plaintiff to Holland which he had paid on taking possession of the mortgaged property. No foreclosure proceeding had been commenced and this condition of affairs continued for some four months when defendant advertised the property and sold it, ostensibly at least under the terms of the mortgage, and himself became the purchaser. Later the plaintiff brought this suit for conversion and on trial in the circuit court without a jury the court found for plaintiff assessing the value of the property at $ 90, crediting thereon the amount of the feed bill paid by defendant and rendered judgment for plaintiff for $ 76. The defendant appeals.

A question of pleading is raised which must be disposed of first. In plaintiff's statement filed in the justice court he alleges that he was the owner of the property and that defendant unlawfully took possession of the same and converted it to his own use to plaintiff's damage in the sum of $ 250. After appeal to the circuit court objection was made that the statement was fatally defective in that there was no allegation that plaintiff was in possession or entitled to possession at the time of the alleged conversion. The court thereupon permitted plaintiff to amend by adding such allegation. While the omitted allegation is essential to state a cause of action in conversion (Schwald v Brunjes, 139 Mo.App. 516, 123 S.W. 472, and Bank v. Land Co., 152 Mo. 145, 156, 53 S.W. 902), we need not decide whether this rather technical rule applies to the informal pleadings allowed in justice courts. Here the pleading was amended and the question is whether such an essential allegation may be added by amendment after the case reaches the circuit court. This question was settled in the affirmative by the Supreme Court in Dowdy v. Wamble, 110 Mo. 280, 19 S.W. 489, certified to that court by the St. Louis Court of Appeals. It was there held that on appeals from justices of the peace the law "permits on appeals even where essential facts were thereby first brought into the case." That was a replevin case and there is no reason why the same rule should not apply to a suit in conversion. It is there held and has been repeatedly so held...