Pritchard v. Hooker & Nixdorf

• Decision Date: 06 November 1905
• Citation: 90 S.W. 415,114 Mo.App. 605
• Parties: ROBERT PRITCHARD, Respondent, v. HOOKER & NIXDORF, Appellants
• Court: Kansas Court of Appeals

90 S.W. 415

114 Mo.App. 605

ROBERT PRITCHARD, Respondent, v. HOOKER & NIXDORF, Appellants

Court of Appeals of Missouri, Kansas City

November 6, 1905

Appeal from Miller Circuit Court.--Hon. James E. Hazell, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Barney Reed and W. S. Pope for appellant.

(1) The instruction, in the nature of a demurrer to the testimony should have been given for the reason that it appears on the face of the mortgage that the mortgagor was to retain possession of the property and sell and dispose of the same and turn the money over to the plaintiff, who was the mortgagee. Mercantile Co. v. Perkins, 63 Mo.App 314; Randol v. Buchanan, 61 Mo.App. 445; Bryan v. Johnson, 93 Iowa 423; Warren v. Creditors, 3 Wash. 48; Filgo v. Bank, 38 S.W. 237. (2) He fails to identify the property at Bagnell as the property mortgaged to him and fails by any competent testimony to connect defendants with the ties or any conversion thereof, and for that reason defendant's demurrer to the testimony should have been sustained. Parker v. Rodes, 79 Mo. 88; Swinney & Gouty, 83 Mo.App. 549; Littlefield v Lemley, 75 Mo.App. 511; Kramp v. Brewing Assn., 59 Mo.App. 277; Charles v. Patch, 87 Mo. 450; Thomas v. Pump Co., 28 Mo.App. 563; Pope v. Boyle, 98 Mo. 527; Drenham v. Joyce, 129 Mo. 51; Walker v. Martin, 8 Mo.App. 561. (3) The peremptory instruction to find for the plaintiff for $ 500 was not justified by anything in the case. Mosby v. Com. Co., 91 Mo.App. 500; Corbett v. Mooney, 84 Mo.App. 645; Vermillion v. LeClare, 89 Mo.App. 63; Gannon v. Gas Light Co., 145 Mo. 502; Seehorn v. Bank, 148 Mo. 256; Banking Co. v. Com. Co., 80 Mo.App. 442; Wolf v. Campbell, 110 Mo. 114; Mining Co. v. Ross, 135 Mo. 101; Thomas v. Ramsey, 47 Mo.App. 84. (4) Considering the fact that the debt secured by the mortgage was not due, and that only a portion of the ties claimed by plaintiff was in existence when the mortgage was given, and the other matter left uncertain by plaintiff, the amount of damage was certainly a question for the jury.

Wm. Forman and D. E. Wray for respondent.

(1) Where the mortgaged property has passed into the possession of a third person with actual notice of the mortgage, then such third person stands in the shoes of the mortgagor and his rights in respect to the mortgaged property as against the mortgagee are not different from those of the mortgagor. Johnson v. Hutchinson, 81 Mo.App. 299. (2) The appellants are in no position to question the validity of the chattel mortgage offered in evidence. The appellants are trespassers and wrongdoers. Appellants by their answer make no claim to the ties nor is there a shadow of testimony tending to prove that appellants had any interest in the ties whatever. Before appellants can be heard to allege the informality or legal insufficiency of the Williams mortgage to respondent, they must show some right to question the same. Bank v. Bank, 50 Mo.App. 96; Johnson v. Jeffries, 30 Mo. 423. (3) Although the chattel mortgage provides that Williams should run the ties to Bagnell and turn the money over to respondent, Robert Pritchard, yet when this clause is violated and the ties appropriated by trespassers and wrongdoers, then respondent was entitled to the possession of the ties and such wrongdoers are not entitled to question such right. Holman v. Lock's Adm'r, 51 Ala. 287; Broughton v. Atchison, 52 Ala. 62. (4) Where the witness of plaintiff is absolutely unimpeached and uncontradicted by facts or circumstances, or either in the matter or manner of his testimony, the trial court will be upheld in directing a verdict for the plaintiff. On the other hand, the appellate court will uphold the trial court in refusing a peremptory instruction in such case, on the presumption that the trial court saw something in the conduct or manner of the witness, or his relation to the cause or the parties, which justified the submission of his testimony to the jury. Jenks v. Glenn, 86 Mo.App. 329; Bank v. Hainline, 67 Mo.App. 483; Magoffin v. Railroad, 102 Mo. 540.

OPINION

JOHNSON, J.

Action for damages resulting from the conversion of 1875 railroad ties. Plaintiff recovered judgment in the sum of five hundred dollars 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 five hundred dollars, 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 sale of the property before the maturity of the note. As the proceeds of any such sale are required to be applied upon the debt secured, the authority to sell cannot be construed as a provision for the benefit of the mortgagor.

The demurrer to the evidence offered by defendants should have been given for the reason that plaintiff failed in his proof in the following respects:

He testified that Williams took the ties to the town of Bagnell and delivered them to a tie company at that point. Plaintiff after this, went to Bagnell and saw them in possession of one of the defendants, and thereupon served notice upon him, claiming ownership of the property. It is not shown that defendants did not acquire possession by purchase from the mortgagor or his vendee. True, defendants did not disclose their source of title, if they had any, and therefore asserted no claim under purchase through Williams,...