Stringer v. Geiser Mfg. Co.

• Decision Date: 07 January 1914
• Parties: STRINGER v. GEISER MFG. CO.
• Court: Missouri Court of Appeals

162 S.W. 645

177 Mo. App. 234

STRINGER v. GEISER MFG. CO.

Springfield Court of Appeals. Missouri.

January 7, 1914.

1. PLEADING (§ 409)—FAILURE TO REPLY—WAIVER.

Where no reply was filed, but defendant without objection or moving for judgment on the pleadings went to trial, it was not entitled after trial to judgment on the ground that its affirmative defenses stood confessed.

2. PLEADING (§ 409)—FAILURE TO REPLY— WAIVER.

Where no reply was filed, but defendant went to trial without objection or moving for judgment while the case would be tried on appeal as if a reply was filed, putting in issue the allegations of the answer, the failure to reply did not raise any new and affirmative defenses to the matters alleged in the answer.

3. CHATTEL MORTGAGES (§ 176)—PLEADING—REPLY.

In an action for conversion, where defendant alleged that it took the property under a chattel mortgage, payment of the secured debt, fraud, or mistake in the execution of the mortgage, or its alteration after its execution, were affirmative defenses which should have been pleaded either in anticipation of the defense or by way of reply.

4. EVIDENCE (§ 419)—PAROL EVIDENCE TO VARY WRITING.

Where a chattel mortgage recited that the mortgagor was indebted to the mortgagee as evidenced by certain notes therein described, and provided that if such notes should be paid, the mortgage should be void, it could not be shown by parol evidence, in the absence of any issue of fraud, accident, or mistake, that some of such notes were paid prior to the execution of the mortgage, since the provision as to the notes was not a mere recital of a consideration open to explanation, but an essential feature of the contract, and hence where there was no claim that such notes were paid after the execution of the mortgage, the court erroneously charged that the mortgagee was guilty of conversion in taking the property if all the indebtedness was paid.

5. CHATTEL MORTGAGES (§ 176)—VERDICT— CONFORMITY TO INSTRUCTIONS.

In an action for conversion against a chattel mortgagee, where there was no evidence that certain of the secured notes were paid subsequent to the execution of the mortgage, and the court charged that the mortgage made all the notes described therein a valid lien on the property, a verdict for plaintiff was not permissible under the issues submitted.

6. APPEAL AND ERROR (§ 171)—THEORY OF CASE.

While appellate courts are prone to hold the parties to the same theory on which they tried the case below, and to broaden the pleadings to cover the issues which the parties without objection allowed to be tried, where an action against a chattel mortgagee for conversion was tried throughout as a suit at law, and there were no issues made by the pleadings of fraud, accident, or mistake in the execution of the mortgage, it could not be treated on appeal as a suit for equitable relief against the mortgage, though there was evidence tending to show facts justifying such relief.

Robertson, P. J., dissenting.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by G. B. Stringer against the Geiser Manufacturing Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

G. C. Dalton and A. J. Arthur, both of Salem, for appellant. Wm. P. Elmer and J. M. Stephens, both of Salem, for respondent.

STURGIS, J.

The plaintiff sued defendant for $2,500 and recovered judgment for $1,500, for an alleged conversion by defendant of a steam traction engine, a threshing separator, a sawmill, saw, belts, etc., the property of plaintiff. The answer of defendant, while denying that the taking by it of such property amounted to a conversion, admits that it took the property from plaintiff and sold it to other parties, and justifies its action in so doing by alleging that it held a valid deed of trust (generally referred to as a mortgage), with power of sale on such property, given by former owners of the same to secure certain notes executed by such former owners, and which at the time of the taking and alleged conversion were past due and unpaid. The answer also alleges the foreclosure by defendant of this mortgage and the sale of the property by the trustee therein named in accordance with its terms, and that the taking by defendant of plaintiff's property was rightful under and by reason of this foreclosure. No reply was filed to this answer. The defendant, however, went to trial without objection or moving for judgment on the pleadings for want of a reply; and plaintiff is correct in saying that it was too late after trial for defendant to take advantage of this default to the extent of demanding judgment on the ground that the affirmative defenses set up in the answer stood confessed. Roden v. Helm, 192 Mo. 71, 83, 90 S. W. 798.

We know of no case, however, going further than to hold that the case will be tried on appeal as if a reply was filed "putting in issue" the affirmative defenses contained in the answer; i. e., "denying the new matter in the answer." Thompson v. Wooldridge, 102 Mo. 505, 510, 15 S. W. 76; Heath v. Goslin, 80 Mo. 310, 318, 50 Am. Rep. 505; Ferguson v. Davidson, 147 Mo. 664, 670, 49 S. W. 859. It cannot be said that the failure to reply raises any new and affirmative defenses to the defenses alleged in the answer, such as the payment of the debt secured by the mortgage, or that the execution of the same was procured by fraud or mistake, or that such mortgage was altered by defendant after its execution. Such matters constitute affirmative defenses; and, if plaintiff intended to take advantage of same, they must be pleaded either in the petition, anticipating defendant's defense (Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668), or by way of reply (Koons v. St. Louis Car Co., 203 Mo. 227, 256, 101 S. W. 49; England v. Denham, 93 Mo. App. 13, 19; Zeller v. Ranson, 140 Mo. App. 220, 231, 123 S. W. 1016; Bank v. Nickell, 34 Mo. App. 295, 298; Wilkerson v. Farnham, 82 Mo. 672; Henderson v. Davis, 74 Mo. App. 1; La Belle Sav. Bank v. Taylor, 69 Mo. App. 99, 106; Kelerher v. Henderson, 203 Mo. 498, 512, 101 S. W. 1083).

It is therefore apparent that no issue was raised by the pleadings, even when aided by the fact of going to trial without a reply, except the issues raised by a denial of the allegations of the answer as to defendant taking and selling this property under and by virtue of the mortgage pleaded. We are, of course, here speaking of the effect on the pleadings of going to trial without objection for want of any reply, and not of the effect of admitting evidence without objection as to an affirmative defense not pleaded, presently to be discussed.

Under these narrow issues the evidence shows that the trustee in this chattel deed of trust, at defendant's request, took this property from plaintiff and advertised and sold it, thereby depriving plaintiff of the same. It was also shown that defendant had sold the property in question to one Cook in the first instance, and that B. B. Hubbs and W. N. Asbridge, former owners of the same by purchase from Cook, executed the deed of trust in question on said property to secure the notes given for the purchase price. The deed of trust was at once placed on record in Dent county, Mo., where the mortgagors lived and the property was then and thereafter kept and used. Plaintiff some time later bought the property from said Hubbs and Asbridge and paid for it, as he admits, by assuming the mortgage indebtedness against it. Plaintiff admits that he knew the property was mortgaged, but said he did not know, or bother himself to go to the records to see, the amount against it. On this phase of the case, however, the trial court correctly instructed the jury that, even if Hubbs and Asbridge on selling the property to plaintiff represented that there was only about $950 against it, such representation would in no wise bind the defendant, as holder of the mortgage indebtedness, since such mortgage was on record and was notice to all the world as to the amount of the notes secured by the same.

The defendant read in evidence its mortgage, and the execution of the same by Hubbs and Asbridge was shown and admitted, except said parties undertook to claim that this mortgage had been changed after its execution by them, and that when executed it did not contain or secure the first four notes of $275 each, of date June 3, 1907, as described therein. This deed of trust, dated ...