Wayne Tank & Pump Co. v. Quick Service Laundry Co.

• Decision Date: 06 July 1926
• Docket Number: No. 15711.,15711.
• Citation: 285 S.W. 750
• Parties: WAYNE TANK & PUMP CO. v. QUICK SERVICE LAUNDRY CO.
• Court: Missouri Court of Appeals

285 S.W. 750

WAYNE TANK & PUMP CO. v. QUICK SERVICE LAUNDRY CO.

No. 15711.

Kansas City Court of Appeals. Missouri.

July 6, 1926.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Suit by the Wayne Tank & Pump Company against the Quick Service Laundry Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

McClintock, Quant & Ferguson, of Kansas City, for appellant.

Stubbs & Wolfe, of Kansas City, for respondent.

BLAND, J.

This is a suit to foreclose a lien arising under a conditional sale contract. The court sustained a general demurrer to plaintiff's petition, and, refusing to plead further, plaintiff has appealed.

The facts alleged in the petition are that plaintiff under a written conditional sale contract sold and installed in the plant of the City Steam Laundry Company, at Kansas City, Mo., a Permutit water softener system. The contract was entered into between plaintiff and the City Steam Laundry Company on December 21, 1923. The contract price for the water softener system was $1,750, of which $437.50 was paid in cash, and the contract provided that the balance should be paid by the City Steam Laundry Company in 18 monthly installments, each in the sum of $72.92, except that the last one, or eighteenth installment, should be in the sum of $72.86. These installments were to be evidenced by notes bearing 6 per cent. interest after maturity ; said notes to be made payable on the 16th day of each month beginning with the 16th day of May, 1924, and ending on October 16, 1925. These notes were duly executed and delivered to plaintiff. The petition alleges that said contract provided —

"* * * That until all of the property furnished under said contract should have been fully paid for in cash the title and right of possession thereto should remain in the plaintiff, the Wayne Tank & Pump Company, a corporation, and that all payments made on account of said contract, between City Steam Laundry Company, a corporation, should at the option of the seller, namely, the plaintiff, in case of default of the City Steam Laundry Company in making full payment, be retained by said seller as liquidated damages for the breach of said contact."

The petition further alleges:

"* * * That plaintiff is the owner and holder of the above described promissory notes and owns the indebtedness evidenced thereby and still owns and holds the legal title to the above described material and equipment under said contract dated December 21, 1923, as security for the payment of said indebtedness, and that there is due and owing to the plaintiff on account thereof the sum of $1,312.50 with interest thereon at the rate of 6 per cent. per annum from the 16th day of May, 1923, which amount is wholly unpaid, and which is the unpaid purchase price of said Permutit water softener machinery."

The petition alleges that each of the notes above mentioned provided that it was given merely as evidence of the indebtedness of the City Steam Laundry Company under its contract with plaintiff, and was not given in payment thereof, and that the acceptance of such notes was not a waiver of the retention of title by plaintiff to the equipment covered by the contract; that each of said notes recited that it was one of the series of 18 aggregating the sum of $1,312.50, and that in the event of default in the payment of any one note of said serial all of the notes thereof should, at the option of the holder thereof, become immediately due and payable. The petition alleges that said notes both as to principal and interest "remain and are wholly unpaid, and are justly due and owing by the City Steam Laundry Company, a corporation, to the plaintiff." The petition further states that —

"* * * Plaintiff caused a true and correct copy of the above described contract, dated December 21, 1923, to be filed in the office of the recorder of deeds of Jackson county, Mo., at Kansas City, on September 2, 1924."

It is alleged in the petition that previous to the making of the contract between plaintiff and the City Steam Laundry Company for the water softener system, said laundry company on April 11, 1923, executed and delivered to one J. P. Randol its note for $50,000 payable to his order, to secure the payment of which note it executed its deed of trust upon its entire laundry plant, consisting of real "estate, tools, equipment, and machinery then installed and in operation or that would thereafter be installed and in operation in such laundry; that the deed of trust provided that it should be subject to, junior and inferior to, claims, liens, and indebtedness due and owing or to become due and owing for the unpaid purchase price of any machinery, equipment, and tools thereafter acquired by said City Steam Laundry Company. The petition alleges that said note was executed to Randol for the use and benefit of the defendant, to whom the indebtedness evidenced by the note was then due and payable, and that Randol, on receipt of the note and deed of trust, transferred, assigned, and delivered the same to the defendant, who became the owner and holder of the same.

The petition further alleges that at the instance of the defendant the trustee in said deed of trust foreclosed the same and received at the foreclosure sale the sum of $30,000 which was credited upon the note; that in the advertisement of sale the water softener was included as being part of the property to be sold; that about December 8, 1924, the trustee executed a trustee's deed to the defendant for the property described in said deed of trust, including all the interest of the City Steam Laundry Company, in the water softener; that the trustee thereupon delivered his trustee's deed to defendant, and in pursuance of the foreclosure and trustee's deed to it the defendant forthwith entered into possession of the property including the water softener, "the title of which and the right of possession thereto as security for said indebtedness owing to plaintiff remain in and belong to plaintiff," and defendant "refuses to either surrender the possession of" the water softener to the plaintiff or to pay the notes executed by the City Steam Laundry Company. The petition further alleges that the rights of defendant in and to the water softener are "subsequent to, junior and inferior to" those of plaintiff. The prayer of the petition is as follows:

"Wherefore plaintiff prays the court for its judgment foreclosing plaintiff...