Nichols & Shepard Co. v. Stokes

• Decision Date: 26 June 1917
• Docket Number: No. 1997.,1997.
• Parties: NICHOLS & SHEPARD CO. v. STOKES et al.
• Court: Missouri Court of Appeals

196 S.W. 1075

NICHOLS & SHEPARD CO. v. STOKES et al.

No. 1997.

Springfield Court of Appeals. Missouri.

June 26, 1917.

Rehearing Denied July 24, 1917.

Appeal from Circuit Court, Jasper County, Division No. 2; David E. Blair, Judge.

Action by the Nichols & Shepard Company against Adam Stokes and J. S. Stokes. From a judgment for defendants, plaintiff appeals. Affirmed.

H. E. Thompson, of Webb City, and C. E. Freeman, of Topeka, Kan., for appellant. J. D. Harris, of Carthage, for respondents.

COX, P. J.

Action in seven counts for balane due on seven promissory notes aggregating $951.98. Defense is payment.

The facts alleged in the answer to show payment are, in brief, that the consideration of the notes sued on was the purchase of a threshing machine outfit; that to secure the payment of these notes defendants gave to plaintiff a chattel mortgage on the machine they purchased and another then owned by defendants on which there was no incumbrance; that when these notes came due the plaintiff fraudulently and with a view to sacrificing said machines and buying them in for itself pretended to foreclose the chattel mortgage by a public sale of the two threshing outfits and bid them off for itself and shipped them out of the country and disposed of them; that defendants were in Oklahoma at the time and had no notice that the property was to be sold, and that no notice of the sale was given and the property sold en masse when a few bidders were present and requested that the machines be offered separately, and this was refused; that the machines were at that time worth $2,500, while the total of defendants' debt to plaintiff was only $1,745.88. The reply was treated as a general denial, and that defendants' cause of action is barred by the statute of limitations.

The sale of the machines set up in the answer took place March 12, 1907. This suit on the notes was begun on April 13, 1915, which is more than five years after the alleged sale, and plaintiff contended at the trial and contends here that if defendants had any ground for relief on account of the facts pleaded it was in the nature of a counterclaim, and was barred by limitation. Defendants contend that the sale was fraudulent and not according to the provisions of the chattel mortgage, and that when plaintiff took possession of the machines under the mortgage and did not properly foreclose the mortgage, it was chargeable as of that date with the full value of the property taken, and that defendants are now entitled to the benefit thereof as a credit on the notes as of that date, and as the value of the machines was greater than the balance due on the notes they are paid.

The jury were instructed to find for plaintiff, unless defendants had proven the fraudulent conduct of plaintiff in making the sale, but if they had so proven, then the value of the machines should be credited on the notes, and if it equalled or exceeded the amount due on the notes, the issues might be found generally for defendants. They were also instructed to return a verdict on each count. A general verdict for defendants was returned.

Objection is made that the verdict is not responsive to the pleadings as there should have been a separate verdict on each count. The proper way to reach that question was by motion in arrest of judgment, and no motion in arrest was filed, hence that point was waived. Ring v. Vogel Paint & Glass Co., 44 Mo. App. 111, 113; Saddlery Co. v. Bullock, 86 Mo. App. 89, 93; Grier v. Strothers, 111 Mo. App. 386, 85 S. W. 976; Lindsey v. Nagel, 157 Mo. App. 128, 138, 137 S. W. 912.

The provisions of the chattel mortgage in relation to foreclosure in case of default were that plaintiff or its agent or assigns could take possession of the property and "sell and dispose of the same and all equity of redemption therein for the best price or prices that can be obtained therefor at public auction, in the manner provided by law upon due and legal notice of such sale, or at private sale with or without notice, for cash or on credit, as the said mortgagee, its successors or assigns, its agent or attorney, may elect." There was also provision as to the disposition of the proceeds of the sale, and that the mortgagee or its agent might become the purchaser.

As to how the sale was conducted, there is sharp conflict in the testimony; that on part of plaintiff tending to show that at least five notices of the sale had been posted in the township where the property was located on February 16, 1907 which was more than 20 days before the sale; that the property was put up for the sale and bid off for plaintiff at $750. The evidence on part of defendants tended to show that notices of sale were not posted; that there were a few persons who had learned from other sources that the property was to be sold and attended the sale with a view to purchase or bid on some part of the property if it were sold separately, and at the time of the sale requested that the machines be sold separately, but this request was ignored and the property sold en masse; that the two machines were worth $2,500 at that time.

The issue of fraud or fairness in the conduct of the sale by plaintiff was submitted to the jury, and their finding was in favor of defendants, and is binding upon...