OPINION
BROADDUS, P. J.
This is
a suit for the conversion of certain personal property. The
respondent has adopted the statement of appellant, with a
certain exception to be noted, and as a matter of convenience
we will also adopt it, taking into consideration the part
excepted to. It is as follows: "For some years prior to
December, 1909, respondent had owned the furniture and
equipment in a restaurant located at 1410 Grand Avenue in
Kansas City, Missouri. This restaurant he had, for some time,
managed himself, but for several months prior to December,
1909, had leased to one Wistcox, who operated the same for
himself and in his own name. On June 5, 1908, while
respondent was operating the restaurant, he had borrowed from
the Dickey Dairy Company of Kansas City $ 332.65, which debt
was evidenced by a note of respondent to the dairy company
payable upon demand, and secured by a chattel mortgage on the
equipment of the restaurant. During the time that respondent
had operated the restaurant, he had also become indebted to
the appellant in the sum of $ 147.33, which
in December, 1909, was long past due and amounted, with
interest, something over $ 160. The Dickey Dairy Company had
long prior to December, 1909, demanded payment of its note
and respondent had paid on the note the sum of $ 230, leaving
a balance still due on December 27, 1909, including interest,
of $ 118.13. In November, 1909, the evidence tends to show
that appellant sold this account to M. J. Kilroy, who was
then secretary of the appellant, and some time thereafter
Kilroy caused an action to be brought in a justice court
against respondent and a garnishment to be served upon
Wistcox. Shortly after the institution of this action,
respondent requested the Dickey Dairy Company to go and
foreclose its mortgage. Pursuant to this request, Mr. Dickey,
manager of the dairy company, together with F. M. Hayward,
his attorney, went to the restaurant on the morning of
December 27, 1909, for the purpose of foreclosing the
mortgage. Mr. Wistcox requested a postponement of the
foreclosure until later in the day, notifying Mr. Kilroy by
telephone of the proposed foreclosure and also notifying Mr.
Kelley, manager of the appellant which had a coffee urn in
the restaurant leased to Wistcox, that he had better come
down and look after his urn. Upon receiving this
communication Mr. Kilroy went immediately to the restaurant
where he found Wistcox, Dickey and Hayward, and shortly
afterward Mr. Kelley came in. Mr. Kilroy objected to the
foreclosure and offered to buy the dairy company note and
mortgage. The respondent was then called over the telephone
by Mr. Dickey and came to the restaurant. Mr. Dickey then
offered to allow respondent to pay the note, which he
declined to do, and thereupon the dairy company sold the note
and mortgage to Kilroy, who gave his check to Hayward, as
attorney for the dairy company, for the sum of $ 118.13, the
amount with interest then due on the mortgage. Kilroy then
told the respondent if he desired to adjust
the matter to come to his office and do so and went away. On
that evening, the evening of December 27th, the respondent,
with one Watkins, went to the restaurant and demanded the
possession of the same from Wistcox. Wistcox declined to
yield the possession and called Kilroy over the telephone and
Kilroy instructed Wistcox to take possession of the
restaurant for him under the Dickey mortgage. On the next
morning Kilroy sold the mortgaged chattels to Wistcox for $
287 but no money was paid at the time, it being understood
that Wistcox would get the money by the negotiation of a loan
and pay Kilroy.
"Some
time during the day of December 28th, the respondent, with
one Watkins, appeared at Kilroy's office and offered
either to buy the note or pay it off, and Watkins produced a
roll of bills said to contain $ 140. There is a disagreement
among the witnesses as to the time of day this occurred.
Owens testifies that it was in the forenoon, Kilroy testifies
it was in the afternoon, and Watkins' testimony does not
fix the time of day. When this offer was made, according to
the testimony of Watkins and Owens, Kilroy said that he did
not want the money, while according to Kilroy's
testimony, he said that he had already sold the restaurant
and could not take the money. All the testimony bearing on
the subject shows...
