The Brunswick-Balke-Collender Company v. Kraus
| Decision Date | 29 June 1908 |
| Citation | 112 S.W. 20,132 Mo.App. 328 |
| Parties | THE BRUNSWICK-BALKE-COLLENDER COMPANY, Respondent, v. KATHERINE KRAUS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Nodaway Circuit Court.--Hon. William C. Ellison, Judge.
Judgment affirmed.
J. C Growney for appellant.
(1) The statute requires that every action shall be prosecuted in the name of the "real party in interest." R. S. 1899 sec. 540. Appellant's demurrer to the evidence at the close of respondent's case should have been sustained and error was committed by the court in refusing to do so. State to use v. O'Neal, 151 Mo. 89; Reichenbach v. Ellerba, 115 Mo. 594; Lee v David, 11 Mo. 114; Kingsland & Ferguson v. Chrisman, 28 Mo.App. 308; Bank v. Ragsdale, 158 Mo. 668; Felix v. Bevington, 52 Mo.App. 407; Williams v. Kirk, 68 Mo.App. 462. (2) A mortgagee who has had both time and opportunity to file his mortgage for record and fails to do so cannot be said to have filed the same within a reasonable time, when afterwards filed. Wilson v. Milligan, 75 Mo. 42; Way v. Braley, 44 Mo.App. 460; Hughes v. Menefee, 29 Mo.App. 203. (3) Respondent offers no excuse for the withholding of the mortgage from record. The statute is imperative in requiring the mortgage to be recorded or possession be taken. R. S. 1899, sec. 3404; Bevans v. Bolton, 31 Mo. 443. (4) The chattel mortgage in this case was not filed for record until after appellant's rights attached to the property and consequently it was fraudulent and void as to her. Bank v. Powers, 134 Mo. 446; Barton v. Sittington, 128 Mo. 175; Revised Statutes 1899, sec. 3404; Collins v. Wilhoit, 108 Mo. 458; Bevans v. Bolton, supra; Landis v. McDonald, 88 Mo.App. 339; Harrison & Calhoun v. Min. Co., 95 Mo.App. 84; Dry Goods Co. v. Brown, 73 Mo.App. 253-4; Abbott v. Goodwin, 20 Me. 408; Berghoff v. McDonald, 87 Ind. 550; Rodes et al. v. Haynes, 33 S.W. 564; Leeds v. Reed, 36 S.W. 347; Holly v. Brown, 14 Conn. 255.
W. W. Ramsay, B. R. Martin and W. E. Wiles for respondent.
(1) Respondent contends that the record in this case shows it to be the only real party in interest, that the appellant tried the case upon that theory in the lower court, that the discrepancy in the allegation of respondent's petition and its proof is not a material variance such as to prejudice the appellant upon the merits. R. S. 1899, secs. 655 and 656; State v. Boogher, 8 Mo.App. 600; Real Estate Co. v. Realty Co., 159 Mo. 562; Albin v. Railroad, 103 Mo.App. 317; Hoyt v. Quinn, 20 Mo.App. 72; Bank v. Westlake, 21 Mo.App. 565. (2) Respondent was entitled to a reasonable time in which to place its chattel mortgage of record. Way v. Braley, 44 Mo.App. 457. (3) Respondent contends that the record in this case shows that the appellant was a prior creditor of the mortgagor, Wilke, at the time the agreement was made to substitute the property in controversy in the place of the property described in appellant's lease; that said agreement was not in writing but was verbal and oral; that appellant did not take into her possession any of the property by virtue of said agreement when the same was entered into; that she did not acquire any right or lien thereon, and therefore, respondent's chattel mortgage being placed of record a long time prior to any attempt on her part to take possession of this property is valid against her. Greeley v. Reading, 74 Mo. 309; Dobyns v. Meyers, 95 Mo. 132; McIntosh v. Smiley, 107 Mo. 377; McIntosh v. Smiley, 32 Mo.App. 125; Donk v. Stevens, 74 Mo.App. 39; Drug Co. v. Self, 77 Mo.App. 284; Landis v. McDonald, 88 Mo.App. 335; Harrison & Calhoun v. Mining Co., 95 Mo.App. 85, S. C., 106 Mo.App. 36.
This is an action of replevin, wherein plaintiff claims possession of certain articles of the value of $ 1,250, consisting of five billiard tables and six pool tables and their appurtenances. The plaintiff claimed a special interest in said property by reason of a chattel mortgage thereon executed by one O. W. Wilkie, as the conditions in the mortgage had been broken. On the 14th day of September, 1906, the defendant took possession of said property and had possession thereof at the time of the commencement of this suit.
On and prior to September 1, 1905, the defendant was the owner of a certain brick building situated in the town of Maryville, Missouri, on which day she leased to said Wilkie and one O. T. Smith a room therein for the period of one year beginning on the 4th day of September, 1905; to be used for a billiard and pool room on condition that they were to pay as rental for said room $ 25 per month payable on the last of each month. It was provided in said lease that all their property situated in said building consisting of five billiard and pool tables and appurtenances should be subject to a lien to secure the payment of all said rents. On the 4th day of December, 1905, the said lessees went into possession of the room in the building and occupied it to the 14th of September, 1906, when defendant took possession. Between December 29, 1905, and January 3, 1906, the said lessees removed their billiard and pool tables described and placed therein the property in controversy upon which O. W. Wilkie had placed said mortgage to secure the payment to the plaintiffs the purchase price thereof, which was executed on the 29th day of December, 1905, and filed for record on the 3rd day of January, 1906. The defendant claims that during the interim between the 29th of December, 1905, and January 3, 1906, that she entered into a verbal agreement with O. W. Wilkie whereby she permitted him to move the billiard and pool tables described in her lease from the building and that whereby the property in controversy was substituted for the same for the purpose of securing her rent. She claims that this agreement was made without knowledge or notice of plaintiff's chattel mortgage and before the same was placed on record and that therefore the same is invalid as to her. The finding and judgment were for the plaintiff from which defendant appealed.
The defendant seeks to reverse the cause on two grounds, viz.:
First, that the plaintiff's suit was not shown to have been prosecuted in the name of the real party in interest; second, that under the evidence the finding and judgment should have been for defendant.
The petition stated that plaintiff The contention of defendant is that the mortgage shows that the plaintiff was a corporation of the State of Ohio, whereas the plaintiff is a corporation of the State of Illinois. A similar question arose in a recent case in this court wherein we held that the place of incorporation was an immaterial allegations in the petition and mere surplusage. [Sands v. Marquardt, 113 Mo.App. 490, 87 S.W. 1011.] This point must...
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