St. Louis Union Trust Co. v. MacGovern & Co.

• Decision Date: 05 March 1923
• Docket Number: No. 23127.,23127.
• Citation: 249 S.W. 68,297 Mo. 527
• Parties: ST. LOWS UNION TRUST CO. v. MacGOVERN CO., Inc.
• Court: Missouri Supreme Court

249 S.W. 68

297 Mo. 527

ST. LOWS UNION TRUST CO. v. MacGOVERN CO., Inc.

No. 23127.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Action by the St. Louis Union Trust Company, a corporation, against MacGovern & Co., Inc. From a judgment for defendant, plaintiff appeals. Affirmed.

Lewis & Rice and Wilson & Trueblood, all of St. Louis, for appellant.

Jourdan Rassieur & Pierce, of St. Louis. for respondent.

SMALL, C.

I. Appeal from the circuit court of the city of St. Louis. Troyer for conversion of two Alice Chalmers electrical machines and other apparatus and connections used therewith. At the close of the testimony for the plaintiff, the court indicated that it would instruct the jury that under the law and the evidence the plaintiff was not entitled to recover. Thereupon plaintiff took a nonsuit, with leave to file motion to set the nonsuit aside, which being overruled, the plaintiff brought the case here by appeal.

The evidence showed that the plaintiff, St. Louis Union Trust Company, was the trustee in a deed of trust dated February 5, 1917, made by the Missouri Plate Glass Company to the plaintiff, as trustee, to secure the payment of certain promissory notes aggregating $225,000, with interest thereon, in favor of the St. Louis Plate Glass Company. Said deed of trust conveyed a tract of ground in St. Louis county

"containing twenty (20) acres, strict measure, together with all and singular the buildings, structures, engines, machinery, fixtures, appliances, and tools on or about the said real property, located in the county of St. Louis, and the machinery and certain motors now located at No. 1007 Morgan street in the city of St. Louis, Missouri, and being the same property covered by and included in the conveyance of even date from the party of the third part to the party of the first part, and the possession of the said described property now delivered unto the party of the second part [plaintiff], and to its successor or successors—in trust, however, for the following purposes: [Notes secured are then described.] * * * Until the first party [Missouri Plate Glass Company] shall have made default in the payment of the principal or interest on any of said notes, or shall have made default in the performance of the covenants, or any of them, herein to be kept and performed by the party of the first part, it shall have the possession, use, enjoyment, and control of all of the property covered by this indenture, and shall receive the rents, issues, income, and profits thereof, with the right at all times to alter, change, add to, repair, dispose of, and replace any and all machinery, engines, fixtures, appliances, tools, and motors, provided only that the security of the within indenture shall not thereby be in any wise reduced or impaired."

If any of the notes or interest thereon was not paid when due, or in case of default in due fulfillment of any covenants made by the first party, then the trustee was authorized to sell the property at public vendue at the east front door of the courthouse in the city of Clayton, in said St. Louis county, and apply the proceeds in payment of the notes and interest and costs of foreclosure.

Plaintiff's evidence further showed that, rust prior to the time of the execution of the deed of trust, the St. Louis Plate Glass Company, which had owned and once operated the property as a glass factory, sold it to the Missouri Plate Glass Company, together with 400 or 500 acres of farming land near by. The purchase price of the whole property was $400,000, of which $50,000 was paid in cash and notes were given for the balance of which $125,000 of said notes were secured by deed of trust on the farm lands, and $225,000 by deed of trust on the 20 acres, buildings and machinery constituting the old glass factory and being the deed of trust hereinbefore mentioned.

Prior to the purchase of the property by the Missouri Company, about a year and a half or two years, the glass factory and the buildings and machinery in it, including the electrical machinery sued for, had gone through two floods. After the Missouri Company had acquired the property, it went through the process of drying out the motors and machinery all through the plant. A fire had occurred, also prior to the the purchase, which burned down the main polishing and grinding building, which was about 725 feet long, wherein was contained the most valuable machinery of the plant, as far as finishing glass was concerned. This building had all burned down and the roof had caved in. The water had been all over the property, and covered the electrical appliances 3 or 4 feet deep. After the Missouri Company purchased it, it was necessary to tear all machinery apart and clean the mud out and dry the motors. At that time, the plant was impossible of operation and had been idle a year and a half or two years. The property had all been exposed, but the other machinery in the other buildings was under cover, and it only deteriorated, like any machinery would from rust forming over it.

"Q. Taking the proposition as a whole was something like a junk pile, wasn't it, when you got there? A. That is what we ran up against when we financed it. * * * It was necessary to rebuild the premises, take all the machinery apart and replace it; to replace castings and pieces of the machinery that were broken, and take apart the large revolving tables, because some of them had warped and had to be fixed; also to take much electrical equipment apart and clean and dry it. There had been a windstorm, which caved...