Toledo Computing Scale Company v. Aubuchon

• Decision Date: 02 February 1915
• Citation: 173 S.W. 85,187 Mo.App. 687
• Parties: TOLEDO COMPUTING SCALE COMPANY, Appellant, v. S. C. AUBUCHON, Respondent
• Court: Missouri Court of Appeals

173 S.W. 85

187 Mo.App. 687

TOLEDO COMPUTING SCALE COMPANY, Appellant, v. S. C. AUBUCHON, Respondent

Court of Appeals of Missouri, St. Louis

February 2, 1915

Appeal from St. Francois Circuit Court.--Hon. Peter H. Huck, Judge.

Judgment reversed and cause remanded.

Merrill Pipkin for appellant.

(1) Section 2890 does not apply to any one except the company and Fry. Aubuchon did not purchase from the company, hence the company was not required to refund any part of the money paid by Fry. The court erred in permitting Fry to testify that no part of the money paid by him to the company had been paid back. Barnes v. Rawlings, 74 Mo.App. 531. (2) The court erred in excluding from the jury the reading of the delivery bond given by the defendant. The object of the statute providing for the giving of a delivery bond for the retaining of property by defendants is to enable them to retain possession of the property until questions of ownership and right to possession can be determined by suit. When defendants have availed themselves of the benefits of this statute, they are estopped from claiming or showing at the trial that the property described in their delivery bond was never in their possession. Carpenter v. Stears, 32 Mo.App. 132; Schnieder Brewing Co. v Niederweiser, 28 Mo.App. 233; Miller v. Bryden, 34 Mo.App. 602. (3) A purchase made with actual knowledge of a prior executory sale is not protected by this section. Dieckman v. Young, 87 Mo.App. 530; Gentry v Templeton, 47 Mo.App. 182; Wurmser v. Sivey, 52 Mo.App. 424; Vette v. Merrill Drug Co., 137 Mo.App 229; Gilbert Book Co. v. Sheridan, 114 Mo.App. 332; Kingsland et al. v. Drum, 80 Mo. 646; Oyler v. Renfro, 86 Mo.App. 321; R. S. 1899, sec. 3410; Collins v. Wilholt, 108 Mo. 451; Hendricks v. Evans, 46 Mo.App. 313; Webb & Co. v. Aetna Ins. Co., 14 Mo. 3; Johnson v. Jeffries, 30 Mo. 423; Wangler v. Franklin, 70 Mo. 659; Rea v. Ferguson, 72 Mo. 225; Price v. Evans, 49 Mo. 396; Penn v. Lewis, 12 Mo. 161; Henderson et al. v. Dickey et al., 50 Mo. 161.

No brief filed for respondent.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

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 was 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 seventy-five 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 paid thereon, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed twenty-five per cent of the amount so paid--does not apply except between the original parties. [See Barnes v. Rawlings, 74 Mo.App....