Toledo Computing Scale Co. v. Aubuchon

• Decision Date: 02 February 1915
• Docket Number: No. 13683.,13683.
• Citation: 173 S.W. 85
• Parties: TOLEDO COMPUTING SCALE CO. v. AUBUCHON.
• Court: Missouri Court of Appeals

173 S.W. 85

TOLEDO COMPUTING SCALE CO. v. AUBUCHON.

No. 13683.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Appeal from Circuit Court, St. Francois County.

Action by the Toledo Computing Scale Company against S. C. Aubuchon. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Merrill Pipkin, of Farmington, for appellant. B. H. Boyer, of Farmington, for respondent.

NORTONI, J.

This is a suit in replevin. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

The subject-matter involved is one computing scale. Plaintiff sold the scale involved to Elijah Fry on condition; that is to say, under what is known as a conditional sale contract, by the provisions of which the title to the property remained in the plaintiff vendor until the purchase price was fully paid. The price agreed upon was $110, and Fry paid $10 down at the time of the purchase. The payment is stipulated for at $10 per month, and it appears that $40 in all was paid as the installments fell due. Fry sold the scales to one J. E. Rollins, who took them with actual notice of plaintiff's claim; that is, of the contract between Fry and plaintiff, whereby the title remained in plaintiff. Gilbert O. Nations, as assignee of Rollins, sold the scales to Haile and Byington, who likewise took them with actual notice of the conditional sale originally made by plaintiff to Fry. Haile and Byington sold the scales to I. W. Miller, and it appears that Miller was informed of the fact of plaintiff's claim; that they were not yet paid for; and that the title resided, under the original contract of sale, in plaintiff. Subsequently I. W. Miller sold the scales to the present defendant, S. C. Aubuchon. There is substantial evidence tending to prove that Aubuchon knew the scales were not paid for, and that they were originally purchased under a contract whereby the title continued to reside in plaintiff until full payment of the purchase price was made. The original contract of sale was in writing, but it does not appear to have been acknowledged. However, it was filed in the recorder's office of St. Francois county, where the property is situate, but not recorded there.

Defendant put in no evidence whatever but proceeded at the trial as though it devolved on plaintiff to tender to him under the statute (section 2890, R. S. 1909) at least 75 per cent. of the amount paid on the scales before the suit could be maintained. Over the objections and exceptions of plaintiff, defendant was permitted to elicit evidence in cross-examination of plaintiff's witness to the effect that no amount of the purchase money theretofore paid on the scales by Fry, the original purchaser, had been tendered by plaintiff to defendant before the suit. This was error, for it is said the statute (section 2890, R. S. 1909) requiring such tender in the case of conditional sales (that is, the tender of the sum...