The American Law Book Co. v. Brewer
| Decision Date | 03 June 1919 |
| Citation | 213 S.W. 881,202 Mo.App. 15 |
| Parties | THE AMERICAN LAW BOOK Co., Appellant, v. BENJAMIN R. BREWER and CHARLES M. CASEY, Co-partners under the name of BREWER & CASEY, Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis--Hon. George H. Shields, Judge.
REVERSED AND REMANDED. (with directions).
Judgment reversed and cause remanded.
Abbott & Edwards and Edwin C. Luedde for appellant.
(1) The Missouri Statute providing that personal property shall in all cases be subject to execution on a judgment against the purchaser for the purchase price thereof and shall in no case be exempt from such judgment and execution, applies to conditional sales as well as absolute sales. Cade v Jenkins, 88 Ga. 791; R. S. 1909, sec. 2191. (2) The Missouri Statute requiring the vendor in a conditional sale to tender or refund to the vendee the sum or sums of mony paid by the vendee, after deducting therefrom a reasonable compensation for the use of said property, which shall in no case exceed twenty-five per cent of the amount so paid applies, only to a case where the vendor takes possession of the property sold under the conditional sale contract and does not apply where the property is taken by an officer of the court under an execution. R. S. 1909, sec. 2890; Crump v. Wissner, 148 N.Y.S. 401; Boyd v Wissner, 149 N.Y.S. 85; In re National Cash Register Co., 174 F. 579; Sigal v. Hatch Co., N. Y. S. 818. (3) It has been held by this court in this State and by other courts in other jurisdictions, that the provisions of a statute requiring the vendor in a conditional sale to refund a portion of the moneys paid by the vendee in the conditional sale on account of the purchase price, do not apply to a levy of an execution on the property so conditionally sold under a judgment for its purchase price obtained by the vendor in a suit therefor, and that a seizure of such property under an execution against the vendee in the conditional sales contract, without right in such vendee to claim the property as exempt under statutory provisions denying exemptions in the property for the purchase price of which a judgment is rendered, is not affected or governed by provisions requiring a conditional vendor upon taking possession of the property conditionally sold, to refund a portion of the moneys paid on account by the vendee. DeLoach Mill Mfg. Co. v. Latham, 99 Mo.App. 231; Conn. Co. v. Orr, et al., 150 Mo.App. 705; In re Bettman-Johnson Co., 250 F. 657; Albright v. Meredith, 58 Ohio St. 194.
Benjamin R. Brewer for respondents.
In 1912 plaintiff corporation sold and delivered to the defendants certain law books, defendants agreeing to pay to plaintiff the purchase price thereof in installments. By the written contract entered into between the parties on February 1, 1912, plaintiff reserved in itself the title to the books until the total of the purchase price had been paid in accordance with the contract. By a "supplemental agreement," of the same date, plaintiff agreed to deliver, and did deliver, to defendants certain bookcases, upon which defendants paid the transportation charges, upon condition that if defendants failed to fulfill the terms of the contract first mentioned then they would be obligated to pay plaintiff the further sum of $ 25. By the terms of the contract under which the books were sold $ 323.10 became due plaintiff. Defendants made certain payments, paying plaintiff in all the sum of $ 105.10, but defaulted as to subsequent payments due, leaving a balance due plaintiff of $ 243, including the said sum of $ 25 for bookcases.
On June 15, 1915 plaintiff instituted this action before a justice of the peace. The petition or statement is in the usual form with an itemized account attached thereto giving defendants credit for the payments made by them and showing the said balance due plaintiff. The prayer of the petition, however, is that the court "render a special judgment for the balance due upon the purchase price of the goods and merchandise aforesaid," in the sum of $ 243, with interest from April 1, 1914, and for costs, "and that a special execution for the said unpaid portion of the purchase price of said goods and merchandise issue in accordance with the provisions of section 2191, Revised Statutes of Missouri, 1909."
Defendants filed an answer admitting the purchase of the property under the contract and that the sum of $ 105.10 had been paid by them, and averred that under the written contract the title to the books was to remain in plaintiff until they were fully paid for; that defendants were ready and willing to surrender to plaintiff the books "upon the payment of seventy-five per cent of the amount paid on said conditional sale of these books to these defendants;" and that plaintiff seeks by the action to obtain possession of the books without tendering to defendants said sum, amounting to $ 78.75, in violation of section 2890, Revised Statutes 1909. By way of counterclaim the defendants prayed judgment against plaintiff in the sum of $ 78.75; but later abandoned the counterclaim.
The trial, before the court, a jury having been waived, resulted in a general judgment in favor of plaintiff for $ 243, with interest from April 1, 1914, making a total of $ 275.15. From this judgment the plaintiff prosecutes the appeal before us.
It is the contention of learned counsel for plaintiff, appellant here, that the trial court erred in refusing to render a judgment showing upon its face that the judgment is for the balance of the purchase price of the books and bookcases mentioned; and erred also in failing to award plaintiff a special execution, as prayed in the petition, "by which to enforce payment of the judgment for $ 243, interest and costs, by levying upon the goods and merchandise for the purchase price of which plaintiff...
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