Rice-Stix Dry Goods Co. v. Sally

• Decision Date: 30 June 1906
• Parties: RICE-STIX DRY GOODS CO. v. SALLY et al.
• Court: Missouri Supreme Court

96 S.W. 1030

198 Mo. 682

RICE-STIX DRY GOODS CO. v. SALLY et al.

Supreme Court of Missouri.

June 30, 1906.

1. PLEADING—ANSWER—LEGAL CONCLUSIONS.

Allegations, in an answer to an interplea claiming under a chattel mortgage property attached by plaintiff, that if the mortgage was signed it "did not give to said interpleader any right to the property," and that "said interpleader is by her conduct estopped from claiming any right" to the property, are mere legal conclusions, adding nothing to a general denial also contained in the answer.

2. CHATTEL MORTGAGE — FAILURE TO RECORD —POSSESSION—BURDEN OF PROOF.

Under Rev. St. 1899, § 3404, requiring for the validity, against third persons, of a chattel mortgage not recorded in the county of the mortgagor's residence that the property be "delivered to and retained by" the mortgagee, an interpleader in attachment, claiming under a prior chattel mortgage not so recorded property attached by plaintiff, must show such a delivery and retention.

3. SAME—MORTGAGED PROPERTY — DELIVERY TO MORTGAGEE—EVIDENCE—SUFFICIENCY.

On an interplea claiming under a prior chattel mortgage property attached by plaintiff, evidence held sufficient to take to the jury the question of an actual delivery of the property to the interpleader.

4. SAME—FRAUD—FAILURE TO PLEAD — INSTRUCTIONS.

Where the answer to an interplea which claims under a prior chattel mortgage property attached by plaintiff is only a general denial, no instruction need be given as to fraud in the giving of the mortgage.

5. SAME—EVIDENCE—SUFFICIENCY.

Where the evidence on an issue between an interpleader, claiming under a prior chattel mortgage, and plaintiff, seizing the property under attachment, shows no element of fraud in the interpleader, except that she was defendant's wife, no instruction need be given on such issue.

6. APPEAL — EVIDENCE — ADMISSION — HARMLESS ERROR.

Where the answer to an interplea claiming under a chattel mortgage property attached by plaintiff does not attack the bona fides of the mortgage, and on its face it shows a consideration, error in admitting testimony as to the amount of indebtedness secured thereby is harmless.

In Banc. Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Action by Rice, Stix & Co. against James B. Sally; Sarah H. Sally interpleading, and Rice-Stix Dry Goods Company being substituted as plaintiff. From a judgment in favor of the interpleader, plaintiff appeals. Affirmed.

Lyon & Swarts, for appellant. J. B. Harrison, J. P. Nixon, and L. F. Parker, for respondent.

BRACE, C. J.

This is an appeal from a judgment of the Webster county circuit court in favor of Sarah H. Sally, interpleader in a suit instituted by Rice, Stix & Co., creditor, against James B. Sally, the husband of the said Sarah H., their debtor, in which certain goods, wares, and merchandise, located at Lecoma, Dent county, Mo., were seized by the sheriff on the 25th of October, 1897, under attachment process issued therein. Mrs. Sally in her interplea claimed the property so seized under and by virtue of a chattel mortgage duly executed and acknowledged by the said James B. Sally on the 21st day of October, 1897, and recorded in Dent county on the 22d day of October, 1897, given to secure the payment of a promissory note of the said James B. Sally of the same date for the sum of $10,500, payable to the said Sarah H. one year after date, with 8 per cent. interest, which it was alleged in the interplea was given by the said James B. Sally in part payment of the sum of $12,465.62 due and owing by him to the interpleader on account of moneys received by him belonging to her as her separate estate. The mortgage and the several items of this indebtedness are set out in detail and at great length in the interplea. The answer to the interplea is as follows: "Plaintiffs, Rice, Stix & Co., for answer to the interplea of Sarah H. Sally filed in this case, admit the allegation thereof that said interpleader is and was the wife of said defendant James B. Sally from September 20, 1883, to the present time. Plaintiffs deny each and every other allegation of said interplea. For further answer plaintiffs allege that if said defendant signed and executed the said writing set forth in said interplea, and which is denied by plaintiffs, the same did not give to said interpleader any right, title, or interest in and to the said property referred to in said interplea; the said writing being null and void. For further answer to said interplea these plaintiffs allege that said interpleader is by her conduct estopped from claiming any right, title, or interest in and to the said property, and estopped from claiming the existence of any indebtedness from said defendant to herself. Wherefore, the plaintiffs pray judgment for the retention of said property." The reply was a general denial of the allegations of the answer, and upon the issues thus joined a trial was had, which resulted in a verdict and judgment for the interpleader, from which the plaintiffs appealed to this court, where the judgment was reversed, and the cause remanded for new trial, and in due course the case was again tried on the same pleadings, and from this second trial, in which the interpleader again obtained verdict and judgment, this appeal is taken.

The case on the former appeal is reported in 176 Mo. 107, 75 S. W. 398 et seq., and the elaborate statements contained in the opinion there reported obviate the necessity of a more extended statement here. Since the case has been pending plaintiff has been substituted for Rice, Stix Co., the original plaintiffs. As will be observed, the answer contains a general denial and two legal conclusions, with no facts stated upon which to base either of them; and the whole answer, so far as the facts are concerned, amounts to no more than a general denial of the material allegations of the petition. The material ultimate fact charged in the petition was that James B. Sally, under whom plaintiff claimed the property by virtue of the attachment process levied on the 25th of October, 1897, had, prior to that date, to wit, on the 21st of October, 1897, by the chattel mortgage in question, conveyed the property levied upon to the interpleader. In order to sustain the averment, it devolved upon the interpleader to show, as against the plaintiff, not only a duly executed and acknowledged chattel mortgage, but that possession of the property had "been delivered to and retained" by the interpleader thereunder, or that the same had been recorded in the county in which the said James B. Sally resided before the levy of the writ of attachment. Rev. St. 1899, § 3404. James B. Sally resided in the county of Phelps. The chattel mortgage was recorded in the county of Dent, so that the only ground upon which the interplea could be maintained was that possession of the property had been delivered to and retained by Mrs. Sally as required by the statute; and under the pleadings that was the material issue of fact in the case. On this issue, in addition to the evidence on the first, much additional evidence was introduced by the interpleader on the second trial now under consideration. It appeared from that evidence that for two or three years prior to the 21st of October, 1897, the said James B. Sally had been running a general country store in the village of Lecoma, in Dent county. The village is situated in the northwest corner of Dent county, near the line between that and Phelps county, and distant about 12 miles from Rolla, which is the nearest railroad station. The village was a small one, the only business concerns being Sally's store, a planing mill, and a blacksmith shop. The trading of the neighborhood generally was done at the store, and it seems to have been the most public and important place in the village. It had no sign on it, and needed none. Sally had three clerks in his employ, viz., John A. Sally, Pat Smith, and George Martin. The chattel mortgage was executed at Rolla, Phelps county, on Thursday, October 21, 1897, between 10 and 11 o'clock p. m., and early in the morning on Friday, the 22d, the interpleader and her attorney in fact, J. B. Harrison, appeared at the storehouse of J. B. Sally in Lecoma, and took possession of the stock of goods, accounts, etc., therein contained and now in question, under the mortgage, as authorized by J. B. Sally so to do, in manner, as testified to by Mr. Harrison, as follows: "Q. Who were the clerks, Mr. Harrison, of J. B. Sally in that store? A. George Martin, Pat Smith, and John Sally. When they all came up there I announced to them the fact that Mrs. Sally had a chattel mortgage, executed by James B. Sally to her on this stock of goods, and he had placed her in possession of it. Mr. Sally at that time had drove that far with us, and had told John Sally to deliver his key to us. We discussed the matter with the clerks. I told them everything that must be done in order to make everybody understand that we had possession of it. I told John Sally to go and have a sign painted the first thing. * * * I then announced to a number of parties there that we had possession of the store under the chattel mortgage, and exhibited the chattel mortgage to them. I held it up in my hand in that way [indicating] to the crowd. Q. Where were you at that time? A. I was standing right in the door of the store, in the south door of the store building. Q. Now, what did you do? A. Well, I exhibited the chattel mortgage and made that statement. Q. What did you say in connection with exhibiting the chattel mortgage, if anything? A. I said we had taken possession of the property for Mrs. Sally, and in no event would she recognize any further claims of J. B. Sally, and...