St. Louis House Furn. Co. v. Stoecker & Price S. & A. Co.

• Decision Date: 07 March 1922
• Docket Number: No. 16746.,16746.
• Citation: 238 S.W. 841
• Parties: ST. LOWS MOUSE FURNISHING CO. v. STOECKER & PRICE STORAGE & AUCTIONS CC.
• Court: Missouri Court of Appeals

238 S.W. 841

ST. LOWS MOUSE FURNISHING CO. v. STOECKER & PRICE STORAGE & AUCTIONS CC.

No. 16746.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Rehearing Denied March 23, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by the St. Louis House Furnishing Company against the Stoecker & Price Storage & Auction Company. From judgment for plaintiff and an order overruling motion for a new trial, defendant appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant. Albert L. Schmidt, of St. Louis, for respondent.

BIGGS, C.

This is an action to recover damages for the alleged wrongful conversion by defendant of plaintiff's personal property. Plaintiff had a verdict and judgment for the amount claimed. After an unsuccessful motion for a new trial, defendant appeals.

As far as it is important to state, the petition charges that the plaintiff, on the 22d day of November, 1915, was the owner and entitled to the immediate possession of certain goods and chattels, which are fully described in the petition, and consist of a lot of household furniture. It is then averred that on said day the defendant, being in possession of said goods, unlawfully converted the same to its own use, to the plaintiff's damage in the sum of $304.90, in this, that the plaintiff held promissory notes executed by one J. W. Hoppe and Grace E. Hoppe in favor of the plaintiff which were secured by duly recorded chattel mortgages upon the property described in the petition, and which notes were payable in monthly installments, and that the said makers thereof had defaulted in making payments as required by the chattel mortgages; that said chattel mortgages provided that the goods therein conveyed to the plaintiff were to remain in the mortgagor's possession until default be made in the payment of the debt and interest, or a violation by the mortgagor of any of the conditions, and, in case of sale or disposal, or an attempt to sell or dispose of said property, or removal Of or attempt to remove the same by the mortgagors or any one else, from the present place of residence of the mortgagors, or in the event of a default in the payment of the debt, or any part thereof, that the plaintiff or its legal representatives may take the property into their possession, and sell same at public auction or private sale, to the highest bidder for cash, and, after satisfying the costs and expenses incurred, and payment of the debt due the plaintiff, shall pay the balance to the mortgagor, etc. It is then averred that the mortgagors defaulted in the payments required by said chattel mortgages, and violated the terms thereof by disposing of the property to the defendant, and having same removed from the residence of the mortgagors, in violation of the terms of the mortgages, and that by reason thereof the plaintiff became the owner of the legal title to said goods and chattels and entitled to the immediate possession thereof, and by the conversion thereof by the said defendant plaintiff has been deprived thereof, and same have been lost to the plaintiff, to its damage, etc.

It is further averred that on April 10, 1916, and on other occasions plaintiff demanded said goods and chattels of the defendant, but that the defendant has failed and refused to deliver same to the plaintiff. The answer was a general denial.

Only such facts as are necessary to pass upon the propriety of the court's ruling in refusing to sustain the defendant's demurrer to the evidence offered at the close of plaintiff's case and at the close of all the evidence are herein stated.

In determining the question as to whether there was sufficient evidence in the record warranting the finding of the jury that there had been a conversion of plaintiff's goods by the defendant, which is the main question raised by the demurrers, we must view the evidence in a favorable light to plaintiff and draw from it all reasonable inferences in plaintiff's favor. Gauging it thus it tended to prove that, after the plaintiff had sold the goods described in the petition, and also in the mortgages to the Hoppes, and delivered same to their residence, and had accepted their notes secured by the said chattel mortgages, thereafter, and just prior to Thanksgiving Day of 1915, the goods were taken from the premises and removed to defendant's place of business in a truck belonging to the defendant; that, after executing the mortgages and purchase money notes for the goods, the Hoppes used same in their residence from the time of the purchase in May, 1915, up until the time of their removal in November, and that during this time the goods so described in the petition and mortgages were in the house, and were not removed until the time referred to, as they had been seen there on several occasions by a collector for the plaintiff, who called there to collect the monthly payments, and that this collector saw the furniture in the house three or four days before November 22, 1915, the date of removal.

The driver of the truck belonging to the defendant testified that in the fall of 1915 he removed from the house of the Hoppes a lot of household goods, bedroom, parlor, and kitchen furniture, which was the character of property described in the mortgage and the petition, and that he took these goods to the warehouse of the defendant.

According to the plaintiff's employe, who was a witness, Robert L. Price, an officer of and in charge of the business of the defendant, stated when the witness made a demand for the goods upon him:

"I have got them. Tell Cornwall (an officer of plaintiff company) to crack his whip when he gets ready."

The first demand for the goods was made two or three weeks prior to April 10, 1916, and also on that date.

Cornwall, an officer of the plaintiff company, testified to telephone conversations with the said Price, in which Price stated in referring to the goods: "Well, I have got them; what are you going to do about it?"

Witness Price, when his deposition was taken, denied that he had the goods or knew anything about them, but when...