Pounds v. Farmers' Union Mercantile Co.

• Decision Date: 16 December 1916
• Docket Number: No. 1886.,1886.
• Citation: 190 S.W. 374
• Parties: POUNDS v. FARMERS' UNION MERCANTILE CO.
• Court: Missouri Court of Appeals

190 S.W. 374

POUNDS v. FARMERS' UNION MERCANTILE CO.

No. 1886.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Replevin by C. B. Pounds against the Farmers' Union Mercantile Company. Judgment for plaintiff in justice's court was affirmed on appeal by the circuit court, and defendant appeals. Affirmed.

Harry Clymer, of Steelville, for appellant. A. H. Harrison, of Steelville, and Frank H. Farris, of Rolla, for respondent.

FARRINGTON, J.

This action of replevin to recover from appellant a promissory note for $25, dated January 1, 1914, due 60 days after date, signed by respondent, and made payable to the appellant, was commenced in a justice court. There was no answer filed. On appeal to the circuit court the plaintiff prevailed. As stated in defendant's (appellant's) brief, plaintiff's contention was that the note was without consideration and had not been delivered.

Appellant, at the time of the execution of the note, was engaged in the general mercantile business in Steelville, Mo., and had been so engaged for a long time prior thereto. In the fall of 1912, respondent was employed by the appellant as its bookkeeper, and continued as such until about June, 1913, when he was made general manager of appellant's mercantile business in addition to being bookkeeper and continued to act as such until in September, 1914. While serving in that capacity (on January 1, 1914), he executed the note sued for, payable to the appellant. His employment by appellant terminated in September, 1914, at which time the position of bookkeeper was temporarily filled until December, 1914, when William Wright was employed in that capacity by the board of directors of the appellant corporation. Later Wright was made general manager and bookkeeper, and continued as such to the date of this trial. In May or June, 1915, Wright discovered the note in question in a drawer of his desk among other papers of the appellant — such as statements from wholesale houses and a copy of the return corporations are required to make to the Secretary of State. He testified there were no other notes in the drawer where he found this one. The desk was the same one respondent had used while employed by appellant and the one in which the books and certain papers of appellant were kept, but respondent while so employed had not kept the notes and other assets of the corporation where this note was found, and Wright, his successor, had kept the notes and assets of the corporation in a different place than that where this note was found, so that this note was never among the assets of the company. Wright called the attention of the board of directors to the note, and when respondent was before the board on some other business he was asked about the note. He admitted the signature on the note was his own, but said he did not recollect the transaction; that he did not have the faintest idea about the note. He did not then deny that the company had a right to the note, or that he had delivered it, and did not make any explanation except to admit he signed it and asked where they found it. About two months later he was before the board again, and then claimed there was no consideration given for the note, and gave this version at that time which is the same as that given by him at this trial: That on January 1, 1914, the date of the note, he owed a note for $50 to the Crawford County Farmers' Bank which fell due on that day, and that he wanted to pay it, but did not have money enough at that time, lacking about $25; that he drew up this note for the purpose of getting the money from the appellant company; that he then thought that would not be the proper thing to do, so he just brushed the note aside and went over to the First National Bank and borrowed $25 and deposited that with his salary check for $45, which made a deposit of $70, and went to the Crawford County Farmers' Bank and gave that bank a check for $50, the amount of the note he owed there. He told the board that was the only way in which he could account for the execution of this $25 note to the company. He testified that he knew he did not borrow the money and did not see how it was possible he ever received anything for it; that according to all the records he had and all the company produced he did not get anything for the note; that it was his opinion he did not get anything for the note. It is true, he stated on cross-examination that he testified in the justice court that he would not say he had not received any consideration for the note, and that he did not know whether he received any consideration for it; but he went on to say (in the circuit court) that, if he were to answer from his recollection now, he would say he did not receive any. He also said that as a matter of fact he did not have much personal recollection that the note was executed in the way and manner he had detailed.

The appellant did not undertake to show that respondent received anything for the note, by its books or otherwise, or that it was given in any kind of a business transaction, resting on the bare possession of the note; no one connected with the corporation attempted to show that appellant took any money or goods from the corporation to cover this note.

Appellant raises these propositions, citing authorities in support thereof: (1) That the possession of personal property is presumptive...