St. Louis Fixture & Show Case Co. v. F. W. Woolworth Co.

• Decision Date: 03 December 1935
• Citation: 88 S.W.2d 254,232 Mo.App. 10
• Parties: ST. LOUIS FIXTURE & SHOW CASE COMPANY, A CORPORATION, RESPONDENT, v. F. W. WOOLWORTH COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

88 S.W.2d 254

232 Mo.App. 10

ST. LOUIS FIXTURE & SHOW CASE COMPANY, A CORPORATION, RESPONDENT,
v.
F. W. WOOLWORTH COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

December 3, 1935

Appeal from Circuit Court of City of St. Louis, Missouri.--Hon. James F. Green, Judge.

REVERSED.

Judgment reversed.

Case, Voyles & Stemmler for appellant.

(1) A landlord's lien for rent expressed in a lease recorded prior to a chattel mortgage is a superior lien, except in cases where a particular description in the mortgage is held to prevail over a general description in the lease. Wright v. Birchers Extrs., 72 Mo. 179, l. c. 187; Attaway v. Hoskinson, 37 Mo.App. 132, l. c. 136. (2) On abandonment of chattels by the tenant, the landlord becomes an involuntary bailee, and has a duty to account for chattels left by the tenant. Robert v. Rialto Bldg. Co., 198 Mo.App. 121, l. c. 129; Blackwell v. Bailey, 1 Mo.App. 328, l. c. 331; Jenkins v. Bacon, 111 Mass. 373, l. c. 376; Warren v. Finn, 84 N.J. L. 206, l. c. 531; Warwick v. Machiaroli (Cal. App.), 273 P. 1109, l. c. 1110. (3) In the absence of special contract, is under no duty to insure the same. Commercial Electric Co. v. Mo. Com. Co., 166 Mo.App. 332, l. c. 336; 3 R. C. L., "Bailments," p. 107, sec. 31. (4) A demand is necessary where defendant is in lawful possession, and such demand must be a positive, definite demand for the property, clothed in absolute and unequivocal terms. Bowers on Conversion, p. 276, sec. 377; Handlan Mfg. Co. v. Electrical Co., 184 Mo.App. 247, l. c. 271; Citizens Bank v. Scott Milling Co., 210 Mo.App. 603, l. c. 611; Cumberland Tel. Co. v. Taylor, 44 Ind.App. 27, l. c. 33; Breese v. Bange, 2 E. D. Smith, 474, l. c. 495; Port Huron v. Cobble, 124 Mo.App. 647, l. c. 652; Monnet v. Ibert, 33 Barb. 24, l. c. 25; Shea v. Shinn, 223 A.D. 476, l. c. 477. (5) Time of conversion, if alleged, must be proven with certainty. Andrews' Stephen's Pleading, p. 333, sec. 162; Williams v. McKissack, 125 Ala. 544; Mobile Ry. Co. v. Bay Shore Co., 158 Ala. 622; Bowers on Conversion, p. 378, sec. 518. (6) A detention of chattels made bona fide on justifiable, reasonable grounds is no evidence of conversion. Bigelow's Leading Cases on Torts (1875), l. c. pp. 420, 445, 446; Sartin v. Saling, 21 Mo. 387, l. c. 390; Hinkley v. Hartzell, 44 Mo. 370, l. c. 372; Pullin v. Allen, 37 Cal.App. 218, l. c. 220; Butler v. Jones, 80 Ala. 436, l. c. 438. (7) Where there is no actual appropriation, sale or disposal of the property, a refusal to deliver, or detention, which is not equivalent in character to an assertion of title, inconsistent with the demander's right, is not evidence of conversion. Bigelow's Leading Cases on Torts, pp. 428, 432; Bowers on Conversion, p. 276, secs. 377, 378; Shewalter v. Mo. P. Ry. Co., 84 Mo.App. 598, l. c. 599; Morningstar v. Cunningham, 110 Ind. 328, l. c. 336; Brandenburg v. Northwestern, etc., Bureau (Minn. Sup. 1915), 151 N.W. 134, l. c. 135; Delsarte Corset Co. v. Murray, 13 N.J. L. J. 185, l. c. 186; Gillet v. Roberts, 57 N.Y. 28, l. c. 32; Alexander v. Southey, 5 B. & A. 247, l. c. 248; Cumberland Telephone Co. v. Taylor, 44 Ind.App. 27, l. c. 33; Annotation, 61 A. L. R. 621; Monnet v. Ibert, 33 Barb. 24, l. c. 26. (8) A party cannot, either in the course of litigation or in dealing in pais, occupy inconsistent positions. Where one has an election between several inconsistent courses of action, that which he first adopts with knowledge of the facts is binding and cannot be withdrawn, though it has not been acted upon by another by any change of position. Bigelow on Estoppel (6 Ed.), pp. 732, 743, 749; Benseick v. Cook, 110 Mo. 173, l. c. 182; Lilly v. Menke, 143 Mo. 137, l. c. 146; Dewey v. Bell, 5 Allen 165; Light v. St. Louis Ry. Co., 89 Mo. 108; Smith v. Smith, 14 Gray 532. (9) This principle applies to trover and conversion. Bowers on Conversion, p. 413, sec. 569, p. 414, sec. 570; White v. Martin, 1 Port (Ala.) 215, 26 Am. Dec. 365, l. c. 366, and note; Cobb v. Wallace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435, l. c. 440; Ware v. Percival, 61 Me. 391, l. c. 393; Keegan v. Park Bank (Mo. Sup.), 8 S.W.2d 858, l. c. 871; Anderson v. Case, 28 Wis. 505, l. c. 508; Andes Ins. Co. v. Waters, 7 Ohio Dec. R. 152, 1 Weekly Law Bulletin 209, l. c. 211.

Grant & Grant for respondent.

(1) When personal property is mortgaged to secure the payment of a debt, the mortgagee becomes thereby invested with the absolute title or ownership of the property after the day of payment has passed. Robinson v. Campbell, 8 Mo. 365; Dean v. Davis, 12 Mo. 112; Lacey v. Giboney, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393; Bowens v. Benson, 57 Mo. 26; State ex rel. v. Adams, 76 Mo. 605; Holmes v. Comm. Co., 81 Mo.App. 97; Thompson v. Machine Co., 179 Mo.App. 276. (2) Any wrongful taking, or assumption of a right to control or dispose of property constitutes a conversion. Any wrongful act, which negatives or is inconsistent with the owner's rights, is per se a conversion. A demand is not even necessary. Allen v. McMonagle, 77 Mo. 478; Miller v. Lange, 84 Mo.App. 219; McLachlin v. Barker, 64 Mo.App. 511; Roach v. St. Louis Type Foundry, 21 Mo.App. 118; Warnick v. Baker et al., 42 Mo.App. 439; Southwest Port Huron Co. v. Cobble, 124 Mo.App. 647; Peoples State Sav. Bank v. Mo. K. & T. Ry. et al., 158 Mo.App. 519; Shewalter v. Mo. P. Ry. Co., 84 A. 589; Sparks v. Purdy et al., 11 Mo. 219; Citizens Bank of Sikeston v. Scott, 210 Mo.App. 603; Hornsby v. Knorpp, 232 S.W. 776; Glassey v. Furnace Co., 120 Mo.App. 24; Banking House v. Brooks, 52 Mo.App. 364; Sherman v. Commercial Printing Co., 29 Mo.App. 31; Lafayette Co. Bk. v. Metcalf, 40 Mo.App. 501; Huxley v. Hartzell, 44 Mo. 370. (3) The subsequent acceptance of property previously converted is not a waiver of the conversion. Sparks v. Purdy, 11 Mo. 219; Laughlin v. Barnes, 75 Mo.App. 258; Lloyd v. Tracy, 53 Mo.App. 175.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION [88 S.W.2d 255]

[232 Mo.App. 12] HOSTETTER, P. J.

This is an action in trover instituted in the circuit court of the city of St. Louis, on August 15, 1930. The personal property alleged to have been converted by the defendant is set out as follows:

28	booths 6' x 6' and all panel work
Panel partition
4	Column enclosures
1	L Shape Cigar Case 7 ft. x 4 ft.
1	Case with sliding doors
29	tables 26x48 with enamel shoes
24	tables 30x30
12	hinge wing tables 30x30
1	music stand
3	Post enclosures with mirrors.

[232 Mo.App. 13] Plaintiff's claim of ownership of the property at the time of the alleged conversion was based on a chattel mortgage executed by the Canton Catering Company, a corporation, on the 22nd day of September, 1928, to secure the payment of fifteen promissory notes due monthly after date for the sum of $ 140 each.

The petition further averred that on the 1st day of May, 1929, by reason of default in the payment of said notes, plaintiff was entitled to the possession of said fixtures and that the amount remaining due and unpaid on the notes was the sum of $ 1596.45.

The petition further averred that on or about the 1st day of May, 1929, the defendant was in possession of said fixtures and that plaintiff made demand upon defendant for such possession, but that defendant refused to permit plaintiff to take possession of the fixtures and retained possession and converted the same to its own use and that on said date the fixtures were reasonably worth $ 4175; praying judgment for that amount together with interest at six per cent per annum from the 1st day of May, 1929, and costs.

The answer contained, first, a general denial, also a specific denial that defendant was in possession of such fixtures on May 1st, 1929, and denial that plaintiff ever made a demand for the possession of said fixtures. Also a specific denial that it ever refused to permit plaintiff to take possession of such fixtures or that it ever converted same to its own use; also the specific denial of the value of same as alleged in the petition. It further averred that on or about June 25, 1927, Chu H. Quin and James H. Chu entered into a written lease with defendant, by the terms of which defendant leased to said persons for a term of ten years, the second floor of the building then located at the southeast corner of Eighth and Olive streets, in St. Louis, Missouri, and it was provided therein that defendant should have a lien against all the furnishings and fixtures which the lessee should have in the demised premises to secure the lessor on account of any and all claims it had, or, in the future might have, against the lessee on account of rent due or to become due under said lease; that the furnishings and fixtures mentioned in plaintiff's petition, being wall panel work and panel partitions, column enclosures, post enclosures with mirrors, tables, case with sliding doors, and music stand, were manufactured and installed by plaintiff in said premises on or about said time under contract with said Chu H. Quin and James H. Chu, who, thereafter, on or about August 8, 1927, assigned said lease to Canton Catering Company, a corporation, which entered into possession and became the tenant, under said lease, of this defendant, [232 Mo.App. 14] conducting a restaurant business in said premises; that in April, 1929, Canton Catering Company, being insolvent, called a meeting of its creditors and advised them that it owed its creditors a general indebtedness of about $ 26,893.26, and that it owned substantially no assets except the chattels, furniture and fixtures in said place of restaurant business, and that a group of Chinese were willing to purchase and pay $ 3,500 for all assets and business of said company; that on investigation it was discovered that...