Western Auction & Storage Co. v. Shore

• Decision Date: 02 July 1915
• Docket Number: No. 11578.,11578.
• Court: Missouri Court of Appeals
• Parties: WESTERN AUCTION & STORAGE CO. v. SHORE et al.

179 S.W. 769

WESTERN AUCTION & STORAGE CO. v. SHORE et al.

No. 11578.

Kansas City Court of Appeals. Missouri.

July 2, 1915.

Rehearing Denied October 4, 1915.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

"Not to be officially published."

Replevin by the Western Auction & Storage Company against Mrs. S. W. Shore and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Clarence I. Spellman and William T. Latham, both of Kansas City, for appellant. Leon E. Bloch and Harry Friedberg, both of Kansas City, for respondents.

JOHNSON, J.

This is an action in replevin, brought in a justice court, to recover possession of the furniture in a certain hotel, which plaintiff claims under a chattel mortgage executed by S. A. Dyson, who purchased the furniture of plaintiff and executed the mortgage to secure the payment of the purchase price. The defense is that "the chattel mortgage, if any, has been fully paid and satisfied." The jury, in the circuit court, where the cause was tried on appeal, returned a verdict for defendants, and plaintiff appealed.

The material facts of the case are as follows: Dyson purchased furniture from plaintiff of the value of $882 to furnish a hotel or rooming house he operated in Kansas City, and gave his promissory note for the purchase price, dated November 29, 1911, payable in weekly installments of $10 each. At the same time he executed a chattel mortgage on the furniture to secure the payment of the note, and a copy of this mortgage was filed by plaintiff in the office of the recorder of deeds of Jackson county December 1, 1911. He operated the hotel 11 months, reduced the note by payments to about $650, and then sold the business, including the furniture, to a Mrs. Burns, for $1,250. She executed a chattel mortgage on the furniture to him for $650, the amount he still owed plaintiff, and paid the remainder of the purchase price to him in money. He did not file her chattel mortgage and she made monthly payments on his mortgage to plaintiff, without plaintiff knowing of the change in the ownership of the property. On June 19, 1913, Mrs. Burns sold the business to L. L. Campbell, who, on or about July 2, 1913, entered into an agreement with plaintiff relating to its lien on the furniture which culminated in the present controversy. It appears that plaintiff, on learning of the sale to Campbell, desired him to reduce the amount of plaintiff's lien by a payment of $50 and to give his note to plaintiff for the remainder, payable in weekly installments and secured by a new chattel mortgage on the furniture. Campbell agreed to this proposal, but could not pay $50 in money, and in lieu thereof delivered a piano he owned to plaintiff on the understanding that when he had paid $50, in addition to the weekly payments, the piano would be returned to him. Pursuant to this arrangement Campbell executed and delivered to plaintiff his promissory note, dated July 2, 1913, for $513.13, the amount then due plaintiff on the Dyson note and mortgage, payable in weekly installments of $8 each, and at the same time he executed and delivered to plaintiff his chattel mortgage on the furniture to secure the payment of that note. Plaintiff did not file that mortgage in the office of the recorder of deeds of Jackson county until July 28, 1913.

There is evidence tending to show that, in consideration of the execution of the new note and mortgage, plaintiff agreed to accept them in payment of the Dyson note and mortgage. Indeed, such is the only conclusion that may be drawn from plaintiff's evidence. But it is claimed by plaintiff that the Dyson securities were not to be released until the Burns mortgage was surrendered to plaintiff, which was not done until July 28th, the date on which plaintiff filed the Campbell mortgage. There is, however, evidence which contradicts this claim, and supports the inference that plaintiff received the Campbell note and mortgage on the date of their execution in full payment and discharge of the Dyson note, without reference to the surrender of the Burns mortgage. On July 21, 1913, one week before the Campbell mortgage was filed, Campbell sold the furniture to Marie Kretchmer as clear of incumbrances, and without informing her of the mortgage he had given plaintiff. He was prosecuted in the criminal court for doing this, but was acquitted; his defense being that he signed the note and mortgage to plaintiff in blank, on the understanding that they would refer only to the piano transaction, and without knowledge that plaintiff would convert them into a note and mortgage creating a lien on the furniture. On August 25, 1913, Marie Kretchmer sold the property to a Mr. Valentine as clear of incumbrances, and on August 30th Valentine sold it to defendant Shore, who was in possession when this action was begun. At that time there was a...