Stringer v. Geiser Mfg. Co.

• Decision Date: 03 April 1915
• Docket Number: No. 1495.,1495.
• Citation: 175 S.W. 239,189 Mo. App. 337
• Parties: STRINGER v. GEISER MFG. CO.
• Court: Missouri Court of Appeals

175 S.W. 239

189 Mo. A. 337

STRINGER v. GEISER MFG. CO.

No. 1495.

Springfield Court of Appeals, Missouri.

April 3, 1915.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

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

G. C. Dalton, of Salem, and W. R. Baxter, of Rockford, Ill., for appellant. Wm. P. Elmer and John M. Stephens, both of Salem, for respondent.

FARRINGTON, J.

This was a suit for the conversion of certain machinery, resulting in a judgment for the plaintiff. The case was here on appeal last year (177 Mo. App. 234, 162 S. W. 645), and in the opinion written at that time may be found a full statement of the facts developed in the trial in the circuit court of Dent county. When the case was remanded to the Dent county circuit court a change of venue was allowed at the instance of the defendant. The case was sent to Webster county, where another trial resulted in a judgment for $1,000 in favor of the plaintiff, and defendant appealed. We refer to the former opinion as stating the main facts of the case, and will in this opinion set forth only enough of the additional facts brought out as is deemed necessary to decide the questions raised on this appeal.

At the trial in Webster county the plaintiff set up in reply to defendant's answer affirmative matter charging that the first four notes described in the chattel mortgage for $275 each were placed therein after it had been signed, executed, and delivered by Hubbs and Asbridge to W. D. Gilstrap, the agent of the defendant; that the amount represented by the four $275 notes was represented by other notes described in the chattel mortgage, and that all the other notes described in the chattel mortgage were properly placed therein when it was executed by Hubbs and Asbridge, and that all this indebtedness had been fully paid and discharged. We quote a portion of the reply that is pertinent to the discussion:

"That after the execution and delivery of the said chattel mortgage to the said W. D. Gilstrap, as agent for the defendant, and to the said defendant, that the said chattel mortgage was, without the knowledge and consent of the said B. B. Hubbs and W. N. Asbridge, wrongfully and fraudulently changed and altered, and that there were other notes which had been prior to that time executed by W. N. Asbridge and B. B. Hubbs, inserted in said chattel mortgage, and particularly four notes dated June 3, 1907, for $275 each, were inserted in said chattel mortgage after the execution and delivery thereof to the said W. D. Gilstrap, and without the knowledge and consent of the said B. B. Hubbs and W. N: Asbridge."

The court refused all the instructions offered by plaintiff and defendant, and submitted the issues on two instructions given of its own motion, one of which told the jury that nine might agree on a verdict. The other instruction given is as follows:

"The court instructs the jury that it stands &Omitted in this case that on February 1, 1912, the plaintiff was in the possession of and claimed to own the following described property, to wit: One Peerless traction engine; one Peerless separator; one Peerless sawmill; one 50-inch Atkins saw; one wind stacker; 150 feet four-ply belt; one tank pump and water tank; and the tools and belts used with same—in Dent county, Mo., and on or about said date the defendant took and converted said property to its own use, and that the defendant took said property under a chattel mortgage executed to defendant by B. B. Hubbs and W. N. Asbridge upon said property, and that the defendant claims that said chattel mortgage was given to secure the payment to defendant of four notes dated June 3, 1907, for the sum of $275 each, and also certain notes dated September 9, 1907, for the aggregate sum of $1,050 all signed by Hubbs and Asbridge.

"You are therefore instructed that if you believe and find from the evidence that at the time said chattel mortgage was signed, executed, and delivered by said Hubbs and Asbridge to the defendant, or defendant's agent, that it did not describe said four notes for the sum of $275 each, but that after said mortgage had been so executed and delivered by the said Hubbs and Asbridge it was altered by the writing in of the description of said $275 notes, then you should find the issues for the plaintiff, and assess his damages at such sum as the evidence shows said property was reasonably worth at the time it was taken and converted by the defendant, not to exceed the sum of $2,500.

"If, on the other hand, you believe and find from the evidence that said four notes for $275 each were mentioned and described in said chattel mortgage before it was executed and delivered by said Hubbs and Asbridge to the defendant, or its agent, then the said chattel mortgage was a valid lien upon said property, and the defendant had a right to take said property from the plaintiff under said mortgage and sell it for the payment of said note, and you should, in that event, find the issues for the defendant."

It can be seen that the only issue put to the jury was to determine whether the four $275 notes were referred to in the chattel...