Semmes v. Rudolph Stecher Brewing Co.

• Decision Date: 05 July 1916
• Citation: 187 S.W. 604,195 Mo.App. 621
• Parties: JOSEPH M. SEMMES et al., Respondents, v. RUDOLPH STECHER BREWING COMPANY, Appellant
• Court: Missouri Court of Appeals

187 S.W. 604

195 Mo.App. 621

JOSEPH M. SEMMES et al., Respondents, v. RUDOLPH STECHER BREWING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 5, 1916

Appeal from Cape Girardeau Court of Common Pleas.--Hon. R. G Ranney, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

J. H Doris for appellant.

(1) Equity will not aid one to obtain relief from a position in which he is placed by his own negligence. Thompson v Lindsay, 142 Mo. 53. (2) A chattel mortgage covering a stock of goods and providing for future advances to replenish the mortgaged stock of merchandise, and applying the mortgage to after required goods, and giving the mortgagor possession and a right to sell in the regular course of business by turning over the daily proceeds to the mortgagee, is not void on its face by reason of any or all of said provisions. Smith Wallac Shoe Co. v. Wilson, 63 Mo.App. 326; Book v. Beasly, 138 Mo. 461; Hargadine v. Henderson, 97 Mo. 395; King v. Graves & Ruff, 42 Mo.App. 168; McDonald Dry Goods Co. v. George A. Kennard Gro. Co., 68 Mo.App. 290. (3) Where a sale of a stock or merchandise in bulk is fraudulent under the Bulk Sale Law, section 1, a creditor of a seller may, despite section 2, attach the stock under R. S. 1909, section 2294, subd. 7, and section 2344, without showing that any particular part of the goods was sold by him. Joplin Supply Co. v. Smith, 182 Mo.App. 212.

Thomas F. Lane for respondent.

(1) Where a mortgagee of personal property permits the mortgagor to remain in possession thereof and sell the property in the ordinary course of business, for his own use and benefit, the mortgage is rendered fraudulent as to creditors and subsequent purchasers. Lasswell v. Henderson, 144 Mo.App. 396; Jackson v. Burgess, 143 Mo.App. 438; Guthrel v. Guthrel, 153 Mo.App. 214; Embree v. Roney, 152 Mo.App. 252; Cobbey on Chattel Mortgages, sec. 273. (2) If upon the whole record, the judgment is for the right party it should be affirmed; or, if on the face of the whole record some other kind of judgment ought to be rendered, in favor of the respondent, it is the duty of the appellate court to render such judgment as should have been rendered by the court of common pleas, or to affirm the judgment and remand the cause with directions to the lower court to enter the proper judgment. Revised Statutes 1909, secs. 2082 and 2083; State ex rel. v. Trust Company, 209 Mo. 472; Henry County v. Salmon, 201 Mo. 136; Dickson v. Rouse, 80 Mo. 224; Rice v. Shipley, 159 Mo. 399; State ex rel. v. Walbridge, 153 Mo. 195; Milliken-Helm Com. Co. v. Albres Com. Co., 244 Mo. 38. (3) A conversion is shown when one person unlawfully interferes with the property of another, and assumes and exercises dominion over it in disregard and to the exclusion of one's rights therein. Peoples State Savings Bank v. Railroad, 158 Mo.App. 519; Bank v. Railroad, 135 Mo.App. 74. (4) Under the evidence in this case, the Brewing Company having stood silent, and failing to show by any evidence what disposition it had made of the property, failing to show the value of the property, failing to show what had become of the property and standing purely on the legal theory that its mortgage was valid, the court has a right to presume that the property was worth at least the amount of the judgment and that the Brewing Company converted the same to its use. Hoppers v. Hays, 82 Mo.App. 494; Swinney v. Gouty, 83 Mo.App. 549. It was held in the case of Murray v. King, 135 S.W. 107, 153 Mo.App. 710, that the sale of lands held in trust was an equitable conversion into personalty. The illegal taking or wrongful assuming of a right to personal property, constitutes a "conversion," and no further steps are necessary to perfect the right of action therefor. Meyer v. Doeherty, 113 N.W. 671; Wilkson v. Misner, 158 Mo.App. 551; Lucas v. Sheridan, 102 N.W. 1077, 124 Wis. 167; First National Bank of Cinn. v. Felker, 185 F. 678; Bergh v. Herring-Hall Morrison Safe Co., 136 F. 368, 70 L. R. A. 756. (5) Under section two of the "Bulk Sales Law" a new and additional remedy is afforded the creditor, which did not eixst before; that is, an action in equity to hold the fraudulent transferee of the goods and chattels of the debtor as a receiver, for the benefit of the creditor invoking the remedy. Joplin Supply Co. v. Smith, 182 Mo.App. 212, 167 S.W. 649.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--Prior to August 26, 1913, Oscar F. Ruediger, one of the defendants herein, was engaged in the saloon business in Cape Girardeau, Missouri, at which time he was indebted to plaintiffs for liquors sold and delivered to him. On said August 26, 1913, defendant Ruediger executed a certain instrument in the nature of a chattel mortgage by which he attempted to convey to the defendant brewing company all of his stock of merchandise, saloon fixtures, equipment, etc. The consideration named therein was $ 956.28, which, it is claimed, Ruediger then owed the brewing company; and the instrument purported to secure a promissory note for said sum, of even date therewith, payable one day after date. Among other things, it provided that Ruediger was to thereafter act as manager of the saloon, run and operate it and sell the stock on hand, and at the end of each week make weekly settlements with the brewing company, deducting from his weekly sales the current expenses of conducting the business and $ 15 per week for hired help, the balance to be paid on the alleged debt.

On October 15, 1913, plaintiffs filed their petition herein, in the nature of a bill in equity, against both Ruediger and the brewing company, setting up that defendant Ruediger was indebted to plaintiffs in the sum of $ 261,24, and was so indebted on said August 26, 1913; and that on said day he fraudulently assigned and transferred to his codefendant, the brewing company, the merchandise and fixtures mentioned, then owned by him and in his possession. And the petition avers that defendant brewing company did not "as required by law, demand nor receive from the said Ruediger prior to the alleged sale and transfer of the stock of merchandise and fixtures above described, a written statement containing the names and addresses of all the creditors of said Ruediger together with the amount of indebtedness due or owing by the said Ruediger to each of his said creditors, and verified by the oath of the said Ruediger as required by law, and certified to be a full, accurate and complete list of his creditors and the amount owing to each, to the best of his knowledge and belief; and the said brewing company did not as required by law notify or cause to be notified by telegraph, or registered mail properly stamped and deposited in the mail, these plaintiffs or other creditors of the said Ruediger, seven days before taking possession of the said stock of merchandise and said fixtures and equipment aforesaid, or before paying the purchase price thereof or the consideration...