White v. Quinlan

• Decision Date: 19 March 1888
• Citation: 30 Mo.App. 54
• Parties: W. A. WHITE, Respondent, v. C. C. QUINLAN et al., Appellants.
• Court: Kansas Court of Appeals

30 Mo.App. 54

W. A. WHITE, Respondent, v. C. C. QUINLAN et al., Appellants.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Affirmed.

Motion for rehearing denied.

The case and facts are stated in the opinion of the court.

PEAK YEAGER & BALL, for the appellants.

I. It is insisted by the appellants that the petition does not state facts sufficient to constitute a cause of action against them. The petition shows no privity whatever between the defendants, Quinlan, Montgomery & Company, and the plaintiff. There is no allegation or averment that these defendants ever undertook or agreed to pay the plaintiff White any sum of money whatever. There is no allegation or averment that these defendants ever promised or agreed to pay the surplus proceeds arising from the sale of the cattle to defendant Wilcox, or to his assignees; nor that the plaintiff White, by virtue of his mortgage, became entitled to demand or receive said proceeds from these defendants. There is not a single allegation or averment that Quinlan, Montgomery & Company agreed to pay White anything, or that they owed him anything, or that they ought to pay him anything. Bowling v. McFarland, 38 Mo. 465.

II. The petition shows upon its face that plaintiff had no cause of action at law against Quinlan, Montgomery & Company. If the defendant Wilcox was indebted to plaintiff, and if defendants, Quinlan, Montgomery & Company, are indebted to Wilcox, then plaintiff, in a suit at law against Wilcox for the amount of his indebtedness to him, might have summoned Quinlan, Montgomery & Company to answer as garnishees. But he certainly would have had no original cause of action against them at law. If the plaintiff had any cause of action whatever against Quinlan, Montgomery & Company it was a proceeding in the nature of an equitable garnishment. In this proceeding, however, the plaintiff, in order to entitle him to proceed against them without first having obtained a judgment against Wilcox, must have alleged that Wilcox was insolvent or non-resident, or could not be served with process. Pickens v. Davis, 20 Mo.App. 1; Lackland v. Garesché , 56 Mo. 267; Nelson v. Betts, 21 Mo.App. 219; Pomeroy's Eq. Jur., sec 327. The petition cannot stand as a suit at law, because the surplus in the hands of the mortgageor or trustee can only be recovered in equity. Vick v. Smith, 83 N.C. 80; Kouns v. Shaffe, 27 Md. 83.

III. The petition shows upon its face that the mortgage to Quinlan, Montgomery & Company became due January 20, 1885, and the mortgage to White was executed, March 12, 1885. After condition broken, the cattle became the absolute property of Quinlan, Montgomery & Company; they owned the legal title and had the right to dispose of the cattle according to their pleasure. Wilcox was a mere bailee, and had no interest in the cattle. Jones on Chat. Mort. [2 Ed.] sec. 454; Wright v. Adams, 76 Mo. 612; Roach v. Type Foundry, 21 Mo.App. 118. It must follow, then, that the mortgage from Wilcox to White conveyed no title whatever, as Wilcox himself had no title. These defendants objected to the introduction of this mortgage in evidence. The court overruled the objection and permitted plaintiff to read it. This was error. The interest of the mortgageor in chattels after condition broken, is not the subject of sale under execution. It is a mere equitable chose in action. State to use v. Carroll, 24 Mo.App. 361; King v. Bailey, 8 Mo. 332, 334; Yeddell v. Stemmens, 15 Mo. 443; Boyse v. Smith, 16 Mo. 317.

IV. The undisputed evidence shows that plaintiff White and the defendant Wilcox were partners. The mortgage of March 12, 1885, was executed by Wilcox to secure his individual indebtedness to his partner, White. Such a mortgage is subject to the prior lien of creditors. Priest v. Chouteaue, 85 Mo. 398; Jones on Chat. Mort. [2 Ed.] sec. 45; Jones on Mortgages, 120. In this view of the case, Quinlan, Montgomery & Company would have had a right to appropriate the surplus in their hands to the payment of Wilcox's indebtedness to them, an indebtedness which grew out of the purchasing and feeding of the identical cattle in question. We insist, therefore, that the trial court committed error in giving instructions numbered one and two for plaintiff, and in finding against these defendants.

V. The judgment of the court is not responsive to the issues, and is, therefore, erroneous, and should be reversed. The suit, whether it be a suit at law or a suit in equity, is against Quinlan, Montgomery & Company and J. H. Wilcox. But there is no finding whatever by the court as to defendant Wilcox; nor is there any judgment either for or against him. Where there are several defendants, there must be some finding as to all of them. Schweickhart v. St. Louis, 2 Mo.App. 571; Eichelman v. Weiss, 7 Mo.App. 87.

VI. There is no equity in plaintiff's claim against these appellants. Plaintiff's own evidence shows he has received from Quinlan, Montgomery & Company, of proceeds of sales of mortgaged cattle, more than double enough money to pay off his mortgage. It appears remittances were made to him as follows:

" April 14, 1885 $ 535 00

April 6, 1885 536 64

April 17, 1885 537 22

March 30, 1885 728 69

March 25, 1885 5,543 61

April 8, 1885 2,502 24

April 14, 1885 464 25

Total $10,487 65"

VII. In addition to this, the defendant Wilcox, who testified for plaintiff, says, that the deposit of March 16, 1885, in Isham's Bank to the credit of Wilcox & White of $2,025.26 was a remittance made by Quinlan, Montgomery & Company for hogs sold by them, and that the deposit of March 18, 1885, of $1,050, was also a remittance from Quinlan, Montgomery & Company, for stock sold by them. Add these two sums to the above amount and we have $13,922.91, as the amount remitted to them by Quinlan, Montgomery & Company. Add to this sum the amount which plaintiff says Quinlan, Montgomery & Company paid him April 22, 1885, to-wit, twenty-eight hundred dollars, and we have $16,722.91, as the amount which plaintiff and Wilcox received from the proceeds of the sale of the hogs and the cattle.

HENRY N. ESS, for the respondent.

I. The record does not show any refusal of the court to admit any evidence offered by defendants, except as follows: Witness, Peyton Montgomery, says: " He thinks Wilcox owed his firm twenty-one hundred dollars, or twenty-two hundred dollars when these last shipments were made. He said his brother told him this was the amount. His brother keeps the books, and his brother told him so." This evidence was objected to and excluded. It does not appear from defendants' abstract that any exception was taken. The mortgage from Wilcox to White was offered in evidence; it was objected to as incompetent, irrelevant, and immaterial. No more specific objections were made.

II. The third, fourth, fifth, and sixth assignments of error are, that the judgment is against the evidence, the weight of the evidence, is against the law and the evidence, and, under the law and evidence, judgment should have been for defendants; and the ninth is, that upon the record, judgment should have been for the defendants. Why, no one knows. The seventh and eighth assignments of error are to the refusal of instructions and the giving of instructions.

III. There were six grounds on which appellants asked for a new trial. The giving of instructions for plaintiff, and the refusal to give instructions asked by defendants, is not one of the grounds of the motion for a new trial. Before this court can reverse the judgment of the lower court for refusal to give instructions, or for giving instructions, the attention of the lower court must be called to the error in the motion for a new trial. This was not done. These two assignments of error ought not to be considered by this court. McCord v. Railroad, 14 Mo.App. 96. The ninth, tenth, eleventh, and twelfth assignments of error are virtually on the motion in arrest. They are, in effect, that the petition shows no case.

IV. The last point made by appellants is, that this debt from Wilcox to White was paid. Their answer, on which the case was tried, denied the allegations in the petition. It set up, also, that the mortgage to White from Wilcox was fraudulent as to creditors of Wilcox; that they were such creditors. This, plaintiff denied by reply. On these issues the case was tried, and decided against defendants. In this court, for the first time, outside of all issues, the claim is made that the debt to White from Wilcox was paid, or might have been paid, and, therefore, they are entitled to keep the money and pay it to neither. The question of payment of this debt to White from Wilcox is not in issue. A party cannot deny a debt ever was made, and that the mortgage is a fraud, and be defeated on those issues, and then, for the first time in the appellate court, say the debt was paid.

V. It is said in appellants' brief that an equity of redemption cannot be mortgaged. The appellants' mortgage debt became due in January, 1885. White took his mortgage in March, 1885. It is said that Wilcox then had nothing to mortgage, as the property was then the absolute property of the appellants. This court has held differently from this contention. Beckham v. Tootle, 19 Mo.App. 601. Wilcox had a substantial interest capable of sale or mortgage. Smith v. Coalbigh, 21 Wis. 427; Jones on Chat. Mort., sec. 712.

VI. The evidence to establish a custom as to paying interest failed. The court must have found against such custom. One witness is not enough. Lawson on Usages and Customs, 96, 99, and cases cited.

VII. It is said White has no contract with appellants...