The J. M. Brunswick & Balke Co. v. E. L. Martin & Co.

• Decision Date: 04 January 1886
• Citation: 20 Mo.App. 158
• Parties: THE J. M. BRUNSWICK & BALKE COMPANY, Appellant, v. E. L. MARTIN & COMPANY, Respondent.
• Court: Kansas Court of Appeals

20 Mo.App. 158

THE J. M. BRUNSWICK & BALKE COMPANY, Appellant, v. E. L. MARTIN & COMPANY, Respondent.

Court of Appeals of Missouri, Kansas City.

January 4, 1886

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action of replevin. One Hedrick, of Independence, by written contract of purchase with plaintiffs, contracted for the purchase of a billiard table and furniture. By the terms of the contract he was to pay two hundred and seventy-five dollars for the table, fifty dollars cash, and execute his nine notes of twenty-five dollars each, due in nine consecutive months for the balance, which notes were to be secured by first mortgage on the table. The title was not to pass to Hedrick until he executed the notes and mortgage.

At the time of this contract the table was in plaintiffs' possession and had not been shipped from St. Louis.

Plaintiffs shipped it under a bill of lading to their own order with directions to notify William McCoy & Son, bankers at Independence, and endorsed the bill of lading to McCoy &amp Son; or the consignment was made directly to McCoy & Son. The evidence does not clearly show which of these two ways was followed, but does show it was one or the other. Plaintiffs wrote McCoy & Son, enclosing the notes and mortgage with express directions to have them executed by Hedrick before the delivery of the table, and before it should be removed from the depot. Hedrick got the table from the depot on the day of its arrival, without any order or permission from McCoy & Son, and without leave of the railroad agent. On the same day, McCoy, learning of its arrival, and that Hedrick had taken it, went to his saloon and commanded his agents not to touch the table; that he had not delivered it and would not till the execution of the mortgage. That he claimed still to hold possession of it. Afterwards Hedrick executed the mortgage to plaintiffs, and the table was then formally delivered to him. The contract of sale was dated February 27, 1883. The table arrived at Independence March 13, and plaintiffs' mortgage was executed and recorded March 15.

Defendants claim title under a chattel mortgage from Hedrick, dated March 3, and recorded March 5.

JOHN A SEA, for the appellant.

I. The sale was a conditional one, and until the purchaser had complied with all the conditions thereof, no title could pass to him. Parmlee v. Catherwood, 36 Mo. 479; Ridgway v. Kennedy, 52 Mo. 24; Robbins v Phillips, 68 Mo. 100; Sumner v. Cottey, 71 Mo 125.

II. Plaintiffs having retained actual possession of property until com pliance with the terms of sale, the statute as to conditional sales, has no application. By rea son of such possession, the notice the statute intends to give was imparted. Warner v. Johnson, S.Ct. Iowa, 19 Reporter 173.

III. Defendants taking mortgage while property was in possession of plaintiff, took with notice of all of plaintiffs' rights. The mortgageor, or defendant, had at the time no intere st in or title to said property that he could convey or mortgage. Jones on Chattel Mort. (Ed. 1881), sects. 117, 138; Wright v. Bircher, 5 Mo.App. 322; 2 Kent's Com. (11 Ed.) 631; Fletcher v. Drath, 66 Mo. 126; Wade on Notice, sects. 273, 76, 78.

IV. By reason of plaintiffs' possession, of the notice of his rights, and mortgageor having no interest in or title to the property, and never having acquired any until after plaintiffs' mortgage had been recorded, defendants' mortgage was void as to plaintiffs. Cases cited third point above.

V. Under the circumstances, the recording of defendants' mortgage imparted no notice to plaintiffs, except of a void thing. Wade on Notice, sect. 214, 216.

VI. Mortgageor could pass no more title than he would gain by any other felonious act. McCandless v. Moore, 50 Mo. 511.

GATES & WALLACE, for the respondent.

I. Under our statutes, the conditional sale made by plaintiff was good to put in purchaser a perfect, uninovmbered title to the property, as between plaintiffs and any subsequent purchaser for value from them. Under our decisions, property not only not in possession, but not even in actual existence, may be mortgaged. Wright v. Bircher, 72 Mo. 179; Frank v. Playter, 73 Mo. 672.

II. Our statutes in regard to conditional sales, changing the rule at common law (section 2507, Revised Statutes), does not make the sale itself void as between the original parties, but only the condition that the title shall remain in the vendor, if the sale is not acknowledged and recorded. It was not necessary for the property to have been actually in the purchaser's possession to give him the right to assign it to a creditor in good faith. Rutherford v. Stewart, 79 Mo. 219.

III. The cases cited by appellant, are before the statute of 1871, and the others are cases which have arisen at common law, or statutes which differ materially from ours. Besides, plaintiff has not repaid or offered to repay any part of the money received by it. Sect. 2508, Rev. Stat.

IV. To comply with the statute, plaintiffs must have had the contract of sale acknowledged and recorded at the time of making it. The unrecorded contract was...