Pritchard v. Hooker

• Decision Date: 06 November 1905
• Citation: 114 Mo. App. 605,90 S.W. 415
• Parties: PRITCHARD v. HOOKER et al.
• Court: Missouri Court of Appeals

90 S.W. 415

114 Mo. App. 605

PRITCHARD v. HOOKER et al.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. CHATTEL MORTGAGES — VALIDITY — SALES BY MORTGAGOR.

A provision of a chattel mortgage authorizing the sale of the mortgaged property before the maturity of the note, and requiring the proceeds of the sale to be applied on the debt secured, does not render the mortgage fraudulent, even as to creditors of the mortgagor.

2. SAME—CONVERSION—ACTIONS—BURDEN OF PROOF.

In a suit by a chattel mortgagee for the conversion of the mortgaged property, the burden is upon plaintiff to establish the facts constituting his cause of action, including the wrongfulness of defendant's possession of the property.

3. SAME—PROOF OF CONVERSION.

Where a chattel mortgage authorizes the mortgagor to sell the property, the mere fact that a third person is in possession of the property, claiming ownership, does not show that his possession is wrongful, in the absence of proof that he did not acquire possession from the mortgagor or his vendee.

4. EVIDENCE—HEARSAY—WRITINGS.

A receipt for mortgaged chattels given to the mortgagor by his bailee is hearsay evidence, and incompetent as to trespassers.

5. SAME—OPINION EVIDENCE—VALUE.

Testimony as to the value of property is opinion evidence, within the rule making such evidence advisory merely.

6. TRIAL—QUESTION FOR JURY—AMOUNT OF RECOVERY.

Although plaintiff's testimony is uncontradicted and unimpeached, the court should not direct a verdict for him, but should permit the jury to assess the damages, where such damages depend upon expert or opinion evidence.

7. SAME — UNCONTROVERTED EVIDENCE — KNOWLEDGE OF WITNESS.

Although evidence is uncontradicted, yet, where a reasonable doubt may be entertained of the accuracy of the knowledge of the witness relative to the facts asserted by him, an issue for the jury is raised.

Appeal from Circuit Court, Miller County; Jas. E. Hazell, Judge.

Action by Robert Pritchard against F. Hooker and another. From a judgment for plaintiff, defendants appeal. Reversed.

Barney Reed and W. S. Pope, for appellants. Wm. Forman and D. E. Wray, for respondent.

JOHNSON, J.

Action for damages resulting from the conversion of 1,875 railroad ties. Plaintiff recovered judgment in the sum of $500, and defendants appealed.

At the trial plaintiff claimed title to the property under a chattel mortgage, executed by James T. Williams, to secure the payment of a negotiable promissory note for $500, dated July 1, 1902, due six months after date, and payable to the order of plaintiff. The mortgage was duly filed for record August 30, 1902. The ties are alleged to have been converted by defendants on November 1st following. The mortgage provided for the possession by the mortgagor of the property conveyed until condition broken, and authorized him to sell the ties and turn over to the mortgagee the proceeds thereof for payment upon the debt secured. Plaintiff was the only witness introduced, and defendants offered no evidence. At the conclusion of the evidence defendants unsuccessfully requested the direction of a verdict for them, and the court ordered a verdict for plaintiff in the sum of $500, the amount sued for. We do not agree with defendants that the mortgage, even as to creditors of the mortgagor (which defendants do not claim to be), is fraudulent upon its face, on account of the provision for the...