Yellow Mfg. Acceptance Corporation v. Rogers

• Decision Date: 22 August 1940
• Citation: 142 S.W.2d 888,235 Mo.App. 96
• Parties: YELLOW MANUFACTURING ACCEPTANCE CORPORATION, A CORPORATION, APPELLANT, v. HARRY O. ROGERS AND IRA O. SCHOOLER, ADMINISTRATOR OF THE ESTATE OF MILO SCHOOLER, DECEASED, RESPONDENTS
• Court: Missouri Court of Appeals

142 S.W.2d 888

235 Mo.App. 96

YELLOW MANUFACTURING ACCEPTANCE CORPORATION, A CORPORATION, APPELLANT, v. HARRY O. ROGERS AND IRA O. SCHOOLER, ADMINISTRATOR OF THE ESTATE OF MILO SCHOOLER, DECEASED, RESPONDENTS

Court of Appeals of Missouri, Springfield

August 22, 1940

Appeal from the Circuit Court of Jasper County, Mo. Division No 1.--Hon. Ray E. Watson, Judge.

Case reversed. (with directions).

Dean C Allard, Roy Coyne, Emerson Foulke and Galt & Smith for appellant.

Birkhead & Teters for respondents.

TATLOW P. J. Smith and Fulbright, JJ., concur.

OPINION

TATLOW, P. J.

This is an action in replevin under a chattel mortgage executed and recorded in Oklahoma where the mortgagor resided. The mortgagor was V. F. Weaver. The mortgagee was the Forester Clark Truck Co., and the Yellow Manufacturing Acceptance Corporation, the plaintiff below (appellant here) is the assignee of the mortgagee. The defendants below (respondents here) are Harry O. Rogers and Ira O. Schooler, administrator of the estate of Milo Schooler, deceased.

The deceased was killed in Jasper County, Missouri, by the truck of which V. F. Weaver was the mortgagor; at the time of the accident the truck was in the mortgagor's possession and was driven by one, Marvin Cross. The appellant asserts title under the Oklahoma mortgage. Respondents assert title under an attachment suit against the said V. F. Weaver and Marvin Cross, (who are not parties to this suit) commenced in the Circuit Court of Jasper County, Missouri and under a writ of attachment issued therein the truck in controversy was levied upon.

The dates are as follows: The date of the mortgage is November 25, 1938. It was duly filed in Oklahoma on the 26th day of November, 1938. It provided for installment payments. All installments were paid up to February 2, 1939. The next installment would not be due until March 2, 1939. The accident and death occurred on February 27, 1939. The attachment suit was filed and the truck levied upon, on February 28, 1939. The replevin suit was filed on March 22, 1939.

The mortgage was never filed in Missouri and if it has any validity under the laws of this State it is under the doctrine of comity. Hence, the controlling question in the case is with reference to the validity of the mortgage in Missouri. If the mortgage is valid, a further question arises as to whether there was any default in the mortgage so as to entitle the appellant to maintain this replevin suit. If the mortgage is invalid, then a further question arises as to whether there was any evidence of the value of the truck at the time the judgment was rendered, so as to authorize the court to render a judgment in favor of the respondents for possession of the truck or at their election a judgment against the plaintiff and its surety on the replevin bond, in the sum of $ 1200.

The activities of V. F. Weaver, the mortgagor, are shown by the testimony of Arthur Thomas, who represented the appellant, as follows:

". . . Mr. Weaver used the truck for general hauling, I think, grain and feed and some posts. At the time he was last contacted he was hauling hay, I think, from around Enid over to Choteau and possibly Siloam Springs, Arkansas, and points in the eastern part of Oklahoma. I know he hauled some to Westville. At the time the truck was attached, as I understand it, he was hauling up here in Missouri, somewhere. Prior to the levy of the attachment of the truck in this county, I don't know as Weaver told me where he was hauling grain and hay and other products from. I suppose my recollection is as good now as it was on February 28, 1939. I came to the office of Teters and Birkhead in Carthage on February 28, 1939, shortly before noon and had a conversation with you (Birkhead) and Mr. Teters about this truck that the sheriff had attached that day. I told you that I was a representative of the Yellow Mfg. Acceptance Corporation and represented the company in matters of business pertaining to the note or chattel mortgage acquired from Forster-Clark Truck Company of Tulsa shortly after the note was executed by Mr. Weaver. I told you on that occasion that the balance of the note was $ 1067. I don't recall telling you that the truck originally sold for thirteen or fourteen hundred dollars but that would have been right. I said Weaver's home was in Choteau, Oklahoma. I discussed Weaver's financial standing and told you Weaver's father had lost a farm. I said that this was a one and one-half ton truck, 1939 model with a long wheel base and box on the truck.

"Q. Now, do you remember that at that time you told Mr. Teters and I that Mr. Weaver, the mortgagor, had been hauling feed and grain from points in Missouri and Oklahoma? A. Well, I had just received that information when I was on this trip into Missouri, he was hauling from Missouri; that is how I knew he was hauling from Missouri, when I found the truck down here attached; I was called about the wreck.

"Q. You mean to say that is the first time you acquired information he was hauling from points in Missouri? A. That is the first definite information--

"Q. What other information did you have? A. Well, I say, that is the first definite information.

"Q. What do you mean by definite information? A. That I had actually been told that he was hauling in Missouri.

"Q. When had you been told he was hauling with his truck in Missouri? A. Well, the evidence of the truck being here.

"Q. When prior to that time had you been told that Mr. Weaver was hauling with his truck in Missouri? A. I don't recall.

"Q. You don't have any recollection about that? A. No, sir.

"Q. Would you say that you had not been told that? A. No, I wouldn't say that, but I don't recall it.

"Q. You wouldn't say you didn't have knowledge and information prior to the attachment that Mr. Weaver was using this truck to haul products from Missouri, and points in the State of Missouri? A. No, I wouldn't say that.

"I don't recall telling you I saw Weaver at Siloam Springs about a month before our conversation, it is possible I did. I have seen Mr. Weaver in Siloam Springs because it is in my territory and I have other accounts there but I could not say I saw him there about a month prior to the attachment. I have a pretty good memory. I can't say that I did talk to Weaver at Siloam Springs prior to the attachment and I can't say I did not talk to him. I don't recall telling Mr. Teters and you that I had seen and talked to Weaver at Siloam Springs about a month prior to the attachment and that Weaver told me that he was then on his way and coming into Missouri for a load. I don't recall any conversation regarding it. I did not know, definitely of the fact that Weaver was bringing this truck into the State of Missouri, that is, I didn't see the truck hauling and he did not tell me definitely himself. I wouldn't say he did tell me and I do not know that he did not tell me. We did not have notice or knowledge that the truck was being taken from the State of Oklahoma. I did not have knowledge or information from the owner of the truck or from anybody else that I know of. I was called by our dealer who said the truck had been wrecked in Carthage, Missouri."

In respondents' additional abstract is set out the cross examination of the witness Thomas, with questions and answers. The testimony seems to be correctly abstracted by appellant.

Mr. Birkhead testified with reference to the conversation of the witness Thomas, as follows:

". . . Mr. Thomas stated to me and in Mr. Teters' presence that Mr. Weaver had been using this truck for about thirty days in hauling grain and hay products from Missouri to other points in Oklahoma and elsewhere. I asked him more particularly about his knowledge and information concerning that situation and I asked him to tell me what conversation he had with Mr. Weaver. He said that about a month ago, that is, a month prior to February 28th, he saw Weaver at Siloam Springs, Arkansas, and Weaver told him he was then on his way with this truck covered by the mortgage to the State of Missouri, to get a load. He stated that was all the conversation that he had and the information he obtained from Mr. Weaver at that time pertaining to this particular trip. He also stated that Mr. Weaver had been coming into Missouri with this truck for about thirty days and that he had this information that Weaver had been coming into Missouri with his truck for about thirty days. I asked him particular questions concerning that. Mr. Thomas left his card, he said, in case we wanted to correspond with him about this matter. Immediately after the conversation and after Mr. Thomas left, I dictated a memoranda of the conversation I had with Mr. Thomas which I have been referring to to refresh my memory during this testimony.

"Cross Examination.

"I did not ask Thomas where Mr. Weaver had been hauling from in Missouri, because I did not deem it necessary. I did not ask him how many trips Weaver had made. Thomas said Weaver had been making trips, he put it in the plural, I will say that. I did not ask him whether Weaver had moved to Missouri. I had information Weaver did not live in Missouri, the attachment was on the ground he was a non-resident. I did not advise Mr. Thomas that anything he might say could be used against him. I tried to get all the information I could pertaining to this matter."

This was all of the evidence with reference to the use of the truck in Missouri.

It will be observed that the number of trips is not shown. Neither is it shown that, on the occasion of the accident, when the truck left Oklahoma there was any definite fixed place in Missouri where the driver intended to purchase grain. All that can be inferred is that he intended to purchase grain...