Oldham v. Siegfried
| Citation | 202 S.W.2d 132 |
| Decision Date | 07 April 1947 |
| Docket Number | No. 20786.,20786. |
| Parties | OLDHAM v. SIEGFRIED. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jackson County; Ben Terte, Judge.
Not to be published in State Reports.
Suit in replevin by Jay L. Oldham against Craig Siegfried. From a judgment in favor of defendant, plaintiff appeals.
Judgment affirmed.
Ernest D. Martin, of Kansas City, for appellant.
Arthur B. Taylor, of Independence, and Walter A. Raymond, of Kansas City, for respondent.
Appellant, as plaintiff below, brought suit in replevin in three counts against defendant to obtain possession of two printing presses and an office desk. Upon a trial to a jury the verdict was in favor of the defendant on all three counts. A judgment was entered accordingly and plaintiff's motion for new trial was overruled. Plaintiff has appealed from the judgment.
In the first count of plaintiff's petition he asserts that by virtue of a chattel mortgage executed by Spencer D. Bovard April 22, 1942, duly filed of record, plaintiff is the owner and entitled to immediate possession as against defendant of one Rice Automatic Press No. B-1-54-54, with attachments and equipment, manufactured by Chandler & Price Manufacturing Company, and which is wrongfully withheld by defendant, and now located in the Y.W.C. A. building at 1020 McGee Street, Kansas City, Missouri. He alleged and prayed for damages in the sum of $100, and for possession.
Plaintiff's second count alleges that by virtue of a chattel mortgage executed July 25, 1938, by Spencer D. Bovard, duly recorded and filed, the plaintiff is the owner and entitled to immediate possession as against defendant of one Miller High-Speed Press No. B.M. 824, with certain accessories, wrongfully withheld by defendant. He alleged and prayed for damages in the sum of $100, and for possession.
In plaintiff's third count he asserts that he loaned Spencer D. Bovard one flat top oak desk, and that plaintiff is entitled to immediate possession of the same as against defendant, who wrongfully withholds the same. He alleged and prayed for damages in the sum of $10, and for possession.
In each of said counts, respectively, plaintiff alleged wrongful seizure of said property by the defendant and his refusal, on plaintiff's demand, to deliver the same to plaintiff.
Attached to the above petition is plaintiff's affidavit in replevin wherein the property is described as in the petition. Thereafter plaintiff filed his amended affidavit in replevin wherein he omitted the number of the Rice Automatic Printing Press. Writ of replevin was thereupon issued.
Defendant filed his answer February 19, 1945. As answer to Count 1, defendant specially denied the allegations thereof, and denied that he ever had possession of a Rice Automatic Press No. B-1-54-54.
As answer to Count 2, defendant denied that plaintiff is the owner and entitled to possession of the Miller High-Speed Press described; that the chattel mortgage described in Count 2 conferred any ownership or right to possession upon plaintiff, or that it conferred any lien thereupon; and asserted that the ownership and right of possession of same had theretofore been adjudicated in a suit between the original owner and Spencer Bovard, from whom defendant bought the press.
The answer to Count 2 further alleged that plaintiff is not the holder in due course of the instrument described in said count, but that it came into his possession as attorney for Spencer Bovard on February 27, 1942, after payments thereon were past due, and after title and right of possession thereunder in Bovard's favor had been adjudicated, and further that plaintiff had knowledge of said facts in his capacity as attorney for Bovard in such litigation. The answer further pleaded the decision of this court in Keystone Press v. Bovard, 236 Mo.App. 156, 153 S.W.2d 130.
As to Count 3, defendant denied that the plaintiff is the owner of the desk described, and asserted that defendant purchased the same from Spencer Bovard, then in possession as owner, together with other equipment, and defendant paid a valid consideration therefor, and received a bill of sale from Spencer Bovard, and that defendant is entitled to possession thereof.
The reply, filed December 7, 1945, was a general denial.
Thereafter, on January 28, 1946, plaintiff filed a motion to strike from the defendant's answer certain specified parts thereof hereinafter stated. The motion to strike was overruled and exceptions saved.
To sustain his first count, plaintiff introduced Exhibit 1, a chattel mortgage executed April 22, 1942, by Spencer Bovard to one Wallace Blakey. It was duly filed of record on May 1, 1942. The property described therein is one Rice Automatic Press No. B-1-54-54, attachments and equipment, manufactured by Chandler & Price Manufacturing Company, Cleveland, Ohio, and now located in the Y.W.C.A. building, 1020 McGee Street, Kansas City, Missouri. It also describes the mortgagor's note for which it is security as of even date, for $725, payable November 1, 1942, and contains the usual provisions authorizing the mortgagee to take possession of the property upon default, sale, or removal. Objections were preserved to the introduction of the Blakey note and mortgage for the various reasons set forth in defendant's answer heretofore stated. The note was endorsed without recourse by Wallace C. Blakey.
To sustain his second count plaintiff introduced in evidence Exhibit 2, which was an instrument designated as a chattel mortgage, executed July 25, 1938, by and between Keystone Press Corporation and Spencer Bovard. The instrument in fact is a conditional sales contract, whereby the Keystone Press Corporation, owner of one Miller High-Speed Press No. B.M. 824, with attachments described, sold the same to Spencer Bovard for $750, of which $100 was paid in cash, and the balance to be paid in installments as evidenced by promissory note of even date, and providing that until the payment of the full balance of the purchase price, the title should remain in the seller in default of which it was provided that that company could take possession of the same, and all payments thereupon made to be forfeited. This instrument was filed of record April 17, 1944. On the back of the instrument, in addition to the acknowledgment, appear these words: Defendant's redelivery bond was also introduced. This bond described the property in the petition, omitting the number of the Rice press as in plaintiff's amended affidavit in replevin.
Plaintiff testified that he resided in Kansas City, Missouri, where he has long been engaged in the practice of law. He identified Exhibits 1 and 2, and testified he had purchased the Blakey note (described in Exhibit 1) before maturity, and had purchased the Keystone contract (Exhibit 2) on February 27, 1942. He stated that on January 8, 1945, when he was passing by the Y. W. C. A. building he saw one of the presses on a dock and the other press was gone; the desk was still there. He demanded possession of the property of the person in charge, and was told to call defendant at Independence, as the person addressed was merely overseeing the moving. Plaintiff telephoned defendant, who told him that plaintiff's notes were no good and described the wrong property, and did not constitute a lien on the same. Plaintiff demanded the property of the defendant, which was refused. After filing the replevin suit, plaintiff met defendant, who told him that he knew of the mortgages, had obtained photostatic copies of both, and that the press named in one was not the press described in plaintiff's mortgage, although there was only one Rice press in the Y.W.C.A. building. Plaintiff said the Rice press would have a value of about $2,000, and the Miller High-Speed press about $3,000. The value of the desk was about $50. He said that he loaned the desk to Spencer Bovard. The principal amount on the $725 note was due with interest of $138.25, a total of $863.25. On the 1938 note and mortgage (Keystone) there was $500 due on the principal, which, with accrued interest, would make a total of $720.96. Demand had been made for these balances and payment had been refused, as evidenced by letter from plaintiff to Spencer Bovard July 21, 1943.
Plaintiff admitted that for several years he had been attorney for Spencer Bovard, former owner of the personal property and from whom defendant purchased it. He had represented Bovard in various lawsuits, including divorce proceedings. He said he had paid cash for the Wallace Blakey note two days after its execution, and that Blakey was an employee in Bovard's shop. He denied that he prepared that note and mortgage. He said that Bovard owed Blakey for unpaid wages. He denied that he had ever seen the number on the Rice press, but said that there was only one such press in the Bovard shop. In 1937, he did prepare a note and mortgage from Spencer Bovard to one Carl Cedarberg, as collateral for another note, and when the latter was paid, the Cedarberg note and mortgage were surrendered to Bovard, but the mortgage was not then released. As to the Miller press, described in the second count, he based his claim to possession on the conditional sales contract in evidence executed by Bovard and the Keystone Press Corporation.
Plaintiff admitted that, in suits brought by the Keystone Press Corporation against Bovard to recover possession of the Miller press, he represented Bovard in the Justice Court, the Circuit Court, and in this court. The record in the justice case showed an affidavit in replevin, which described the same Miller High-Speed Press, and showed judgment for Bovard on the claim for replevin, and against him on his...
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