Summers v. Baker
| Decision Date | 15 July 1911 |
| Citation | 139 S.W. 226,158 Mo.App. 666 |
| Parties | EMMA A. SUMMERS, Respondent, v. JAMES E. BAKER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Court.--Hon. Daniel D. Fisher, Judge.
REVERSED AND REMANDED.
STATEMENT.--This is an action to recover damages for an alleged wrongful conversion by defendant. The suit was originally commenced against John H. Vette, Henry C. Wiehe and James E. Baker, but at the first trial the plaintiff took a voluntary non-suit as to Vette and Wiehe and obtained a verdict against Baker alone. This verdict was afterwards set aside and upon a retrial the plaintiff had verdict and judgment against Baker alone, and after an unsuccessful motion for a new trial Baker has appealed.
The petition alleges merely "that on the 27th day of February, 1906, she (plaintiff) was entitled to the immediate possession of certain goods and chattels, to-wit: (describing them), which said goods and chattels were then of the value of $ 1,000; that afterwards, to-wit: on the 28th day of February 1906, said goods came into the possession of the defendants who then and there unlawfully converted them to their own use and disposed of the same." The answer was a general denial. It appeared from the evidence that plaintiff, being the owner of certain household furniture delivered it to one Henry C. Wiehe, a warehouseman, for storage, and on May 31, 1905, he placed them in his warehouse and, the evidence tends to prove, issued in plaintiff's name warehouse receipt numbered 2140. On June 6, 1905 plaintiff in writing purported to appoint defendant Baker her agent to procure her a loan of $ 372 on the furniture agreeing to pay him $ 122 for his services in procuring the loan, "and for appraising, making inventory, examining records, notary fees, enforcing and guaranteeing the payment of said loan and drawing necessary papers." She then executed twelve negotiable promissory notes for $ 31 each payable to the order of John H. Vette, one each month during the succeeding twelve months, with interest at eight per cent per annum. She also duly executed and acknowledged a chattel mortgage conveying the furniture to Vette as mortgagee, to secure the payment of said notes. As part of the description the mortgage contains the statement that "the above goods are in the warehouse of Henry C. Wiehe at No. 1516 Franklin Ave. as evidenced by warehouse receipt No. 2140 dated May 31, 1905." The mortgage also conveyed certain restaurant fixtures and furniture to Vette as mortgagee to secure the payment of said notes. The mortgage contained among others the following provisions:
"The property hereby sold and conveyed to remain in her possession until default is made in the payment of the said debt and interest or some part thereof; but in case of a sale or disposal, or attempt to sell or dispose of said property or any part of the same . . . by any person whomsoever, . . . without the written consent of the said mortgagee or assigns, . . . the said mortgagee, or his legal representatives, may take the said property or any part thereof into their possession."
Baker guaranteed the payment of the notes by stamping on the back of each and signing the following:
"For value received, I hereby guarantee the payment of the within note at maturity, or at any time thereafter, waiving demand, notice of non-payment and protest."
The plaintiff then went with defendant, or his clerk, to Vette's loan office and delivered to Vette the notes and mortgage, executed and guaranteed as aforesaid, and the plaintiff received Vette's check for $ 372, and, accompanied by Baker's clerk, went to the bank where she endorsed and cashed the check and paid to the clerk for Baker the one hundred and twenty-two dollars agreed upon as his compensation for procuring the loan, etc. The evidence tends to prove that the warehouse receipt, duly endorsed by plaintiff in blank, was delivered by plaintiff to Vette with the notes and mortgage.
On September 20, 1905, through the agency of defendant and by a transaction similar to that above described she borrowed seventy-five dollars additional from Vette and as security gave him a chattel mortgage on personal property other than either of the lots above mentioned. She paid defendant Baker a large part of this second loan for his part in the transaction. Between the time she procured this loan and the first week in March, 1906, plaintiff sold and disposed of the restaurant furniture and fixtures and also of the property covered by the seventy-five dollar mortgage. She admitted while testifying, that the mortgagee, Vette, did not consent to either of such sales, but stated that Baker did. Baker, testifying, denied giving such consent. In the first week in March, plaintiff was in default as to the payment of at least four of the thirty-one dollar notes secured by the mortgage on the furniture in Wiehe's warehouse and the restaurant outfit. At that time, defendant Baker got the warehouse receipt from Vette, surrendering it to the warehouseman and paying some $ 120 storage charges, and removed from the warehouse all the goods placed there by plaintiff and covered by the three hundred and seventy-two dollar mortgage, and mixing the goods with goods of his own, sold and disposed of them for a price which, when testifying, he professed inability to state. Plaintiff's evidence tended to prove that the goods so taken, sold and disposed of by defendant Baker were of the value of one thousand dollars. Baker attempted to justify his action in taking the goods and converting them to his own use by...
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