Peppas v. Ehrlich & Sons Mfg. Co.

• Decision Date: 30 April 1934
• Docket Number: No. 18030.,18030.
• Citation: 71 S.W.2d 821
• Court: Missouri Court of Appeals
• Parties: WILLIAM PEPPAS, RESPONDENT, v. H. EHRLICH & SONS MANUFACTURING Co., APPELLANT.

71 S.W.2d 821

WILLIAM PEPPAS, RESPONDENT, v. H. EHRLICH & SONS MANUFACTURING Co., APPELLANT.

No. 18030.

Kansas City Court of Appeals. Missouri.

April 30, 1934.

Appeal from Circuit Court of Buchanan County. — Hon. Sam A. Wilcox, Judge.

AFFIRMED.

Randolph & Randolph for respondent.

Landis & Landis for appellant.

TRIMBLE, J.

Plaintiff's petition alleges that on or about the ____ day of November, 1930, he bought of defendant certain restaurant fixtures to be installed in the "Manhattan Cafe" in St. Joseph, which was done; that the price of said fixtures so installed was $3600 which was secured by a chattel mortgage thereon for that sum; that on the ____ day of July, 1931, he paid $845 on said purchase price and thereafter became delinquent in the payments due on the balance of said indebtedness; that plaintiff, on account of bad business conditions, asked for an extension of time in which to make his further payments on said indebtedness, whereupon it was orally agreed between them that —

"If plaintiff would help the defendant find a buyer for said restaurant and would not remove from said restaurant certain other fixtures installed in said restaurant by plaintiff and not furnished by defendant, and which fixtures plaintiff had paid for and claimed the right to remove, which fixtures were of the value of One Hundred Sixty Dollars ($160) and consisted principally of plumbing fixtures, the defendant would, if plaintiff would aid and assist him in selling said restaurant as aforesaid, pay back to the plaintiff all the money he had paid on said fixtures and what money he paid out on the above described plumbing fixtures." (Italics ours.)

The petition further alleged that, relying upon said agreement and promise, plaintiff did refrain from removing said fixtures, and, at his own expense and by his own efforts, did find a purchaser for said restaurant, as a result of which defendant sold the said fixtures to the purchaser so found by plaintiff, for $3600, and put the purchaser in possession without foreclosing said chattel mortgage securing plaintiff's original debt for same; that defendant, in violation of his agreement, did not repay to plaintiff the said $845 he had paid nor the $160 "paid by him on said fixtures as aforesaid;" that by reason of all which he (plaintiff) has been damaged in the aggregate sum of $1005, for which he asked judgment and costs.

Defendant's answer was a general denial coupled with allegations setting up that plaintiff for the purchase price of the fixtures he purchased of defendant, executed the chattel mortgage "covering all of the fixtures by plaintiff from this defendant;" that default was made in the payment of said notes so that by the terms thereof all of them became due, and, in accordance with the terms of the chattel mortgage, plaintiff surrendered and turned over to defendant all of the property secured by said chattel mortgage, and, in compliance with the terms thereof, defendant sold the property covered thereby. No reply denying the answer appears in the record, but the case was tried as if there were one filed.

The trial resulted in the returning of a verdict, signed by nine jurors, for plaintiff in the sum of $500. From a judgment thereon, defendant has appealed.

The fixtures and equipment sold by defendant to plaintiff were bought under a written contract specifying $3600 as the purchase price, $300 of which was to be paid when contract is signed (and plaintiff testified he paid said $300 at that time). Said contract contained the following, among other provisions:

"The title and rights of possession of the above named articles shall be and remain in the said H. Ehrlich & Sons Manufacturing Company until the purchase money has been fully paid and it shall have the right at all times to remove same if the purchaser should fail to make payments thereon when due, and to retain possession of said goods and all payments made thereon as liquidated damages for breach of contract by purchaser."

"The failure of the purchaser to carry out and perform any requirements herein on his part shall cause the indebtedness to become immediately due and payable."

Plaintiff is a Greek, and his ways of expression are sometimes difficult to understand, but, as we gather from the record, he testified that in addition to the $300 paid at the signing of the contract, he bought an ice-box or refrigerator from plaintiff and paid $467.71 therefor, and he also bought and paid for certain "plumbing things" and connections, amounting to the sum of $160.

Plaintiff's evidence is that he paid an aggregate sum of $845 on notes (secured by chattel mortgage to plaintiff) given for the fixtures, which, with the $160 paid for the plumbing things necessary to connect them, aggregated $1005 for which he sues.

The purchase made of defendant, and for which the chattel mortgage was given, was in November, 1930. Plaintiff's testimony is that after paying the above named $845 on the mortgage notes (being for $100 each due on the 11th of each month for 30 consecutive months, with provisions that if default was made in the payment of any one when due, then all unpaid should become due); he, some days prior to July 11, 1931, saw Mr. Ehrlich of the defendant company and told him business was "quiet" and he (plaintiff) was not able to pay more at this time on his debt; that Mr. Ehrlich, speaking for and representing the defendant company, said: "Well, I think it best for us to look after to find somebody to sell this to. Can't you get some Greek to sell it to?" "And I say `I know a couple of Greeks to buy it but it takes a little time.' He said `Go ahead and if you get those boys to buy this place here I turn back what you pay for the fixtures on this place here but don't touch nothing here. Don't take anything out or let anybody take anything out. Tell them the place is for sale.'" ... "I had come to the point where I was going to close up and take out what I had in the restaurant. Those plumbing things and plumbing fixtures. I talked to Mr. Ehrlich about taking that out. He said `Don't touch anything at all.' He said `You want to get the customer to buy this place. Tell him to come to see me and when I close the deal I pay you what you put in.' He said, `Go ahead, rush, rush, rushing them to close the deal, and you not be out. You get your money, what you put in so we don't have to take it. If we take the stuff out it isn't worth nothing to us.' After I talked to Tranos, I went to Kansas City. I saw Alex Koutsoubos. Then Alex came to St. Joseph. I made about five trips to Kansas City in connection with this matter at my own expense. I didn't close the deal with Tranos and Koutsoubos I told him to go to Mr. Ehrlich to close the deal. I didn't have a thing to close. He had the mortgage. Mr. Ehrlich instructed me any time I got any of the Greek boys to buy the restaurant, not to mix it up at all with these boys but to tell them to come and see him because he had everything in his hands and would take care of me. I sent these boys to Mr. Ehrlich. Mr. Ehrlich sold it to them."

Later, plaintiff testified he never bought a refrigerator from Mr. Ehrlich, but did buy from him an ice-box. He admitted his name was on the contract (Exhibit B) with plaintiff for what he calls an ice-box, but the contract calls at "1 — No. 250 Short Order Restaurant Refrigerator," the price of which is $312 instead of $467.71 to which he testified as heretofore stated. On the back of said contract (Exhibit B), appears the same provision as to title and rights of possession remaining in defendant until debt is paid, as in the contract hereinbefore shown.

The record further discloses that plaintiff gave a $3300 chattel mortgage to defendant, not only for the fixtures and equipment but also a chattel mortgage for $287 consisting of promissory notes of $20 each and one for $27 on the No. 250 Short Order Refrigerator. Both of these chattel mortgages provide that in case of...