Zahner Mfg. Co. v. Harnish

• Decision Date: 23 May 1932
• Citation: 51 S.W.2d 145,227 Mo.App. 287
• Parties: ZAHNER MANUFACTURING COMPANY, PLAINTIFF IN ERROR, v. A. R. HARNISH ET AL., DEFENDANTS IN ERROR
• Court: Kansas Court of Appeals

51 S.W.2d 145

227 Mo.App. 287

ZAHNER MANUFACTURING COMPANY, PLAINTIFF IN ERROR, v. A. R. HARNISH ET AL., DEFENDANTS IN ERROR

Court of Appeals of Missouri, Kansas City

May 23, 1932

Error to the Circuit Court of Jackson County.--Hon. Ben Terte Judge.

AFFIRMED.

Judgment affirmed.

Jay L Oldham for plaintiff in error.

James B. Nourse for defendant in error.

OPINION

ARNOLD, J.

This is an action in replevin. A jury being waived the cause was tried before the court, resulting in judgment for one of the defendants, viz., D. A. Morr Transfer & Storage Company, in the sum of $ 262, the value of said defendant's special interest in the property taken, together with $ 62.88 interest. The judgment was entered against plaintiff and its sureties in the total sum of $ 324.18. Judgment also was rendered in favor of plaintiff against the other defendants A. R. Harnish and Melvin P. Allen, for possession of all the property described in the 1st, 2d and 3d counts of the petition, and found to be of the value of $ 1,000; and that plaintiff have and recover of defendant A. R. Harnish the amount of the indebtedness set out in the 4th, 5th and 6th counts of the petition, in the amount of $ 2,000, and $ 600 interest, a total of $ 2600.

Plaintiff filed its motions for a new trial and in arrest of judgment, which were overruled, and the cause is before us on a writ of error sued out by plaintiff. This is the second appeal in this case. In the former trial, there was a judgment for plaintiff against all the defendants, and a new trial was allowed on motion of defendant D. A. Morr Transfer & Storage Company, and from this ruling, plaintiff appealed to this court. Upon review, the said judgment was affirmed. [Zahner Mfg. Co. v. Harnish et al., 24 S.W.2d 641.]

We do not deem it necessary to restate the facts here, as such a statement contained in the former opinion clearly and accurately summarizes the situation as shown by the present record. Reference is hereby made to that statement, as the evidence before the court at the second trial, it may be concluded, was substantially the same as at the first, and from which the court properly found all of the facts stated in the former opinion. However, plaintiff, in its reply brief, states:

"The facts in this second appeal are materially different from that of the former appeal, as plaintiff used two witnesses, Claud C. Barker and Joseph F. Waller, who were employees of defendant in error. The opinion in the former appeal (Zahner Mfg. Co. v. Harnish, 24 S.W.2d 641) is not the law of this case, and no injustice would result from overruling the former decision."

We have carefully read the testimony of the witnesses named and find that it does not materially change or alter the facts as stated in our former opinion. Clearly the testimony of the two witnesses named was intended to refute the statement that the goods in question were voluntarily surrendered by defendant D. A. Morr Transfer & Storage Company to plaintiff. The additional testimony offered is to the effect that such surrender of possession was in obedience to the writ of replevin, and was not voluntary. The original opinion fully and correctly covers this phase of the case.

Plaintiff insists it did not waive priority of its purchase money chattel mortgages, duly filed of record, to that of a subsequent lien for storage by a warehouseman who contracted only with the mortgagor. The former opinion held to the contrary, upon the theory that plaintiff waived its priority by consenting to the storage of the goods in question with D. A. Morr Transfer & Storage Company. There being no testimony to the contrary in the present record, the former opinion is res adjudicata on this point.

Under point 2, plaintiff insists a warehouseman is not given a superior lien to that of a chattel mortgage, duly filed of record, by virtue of sub-section (b), section 14401, Revised Statutes 1929. The fallacy of this position is that there is no contention made that defendant Storage Company's lien and special interest in the property taken was created against the mortgagee under, or by virtue of said section. The lien against plaintiff arises out of the rule that plaintiff's consent to the storage subjects its interest and title to defendant's lien and estops plaintiff from setting up such title against the lien. [Zahner Mfg. Co. v. Harnish, 24 S.W.2d 641; 11 C. J. 659, sec. 408; Lange v. Midwest, etc. Co. (Mo. App.), 231 S.W. 272.] Cases cited by plaintiff are not contrary to this rule.

It is urged under point 4, of plaintiff's points and authorities, that under section 14402, Revised Statutes 1929, defendant lost its warehouse lien for storage, by surrendering the chattels to plaintiff, without compelling identification or a levy by the sheriff. This question was disposed of against plaintiff's contention on the former appeal, and is the law of the case. A further discussion of this point at this time is not warranted.

Finally it is contended that section 1634, Revised Statutes 1929, provides the basis of recovery by defendant, and that the trial court erred in basing its judgment upon defendant's claim for storage, and not on the value of the property in the hands of plaintiff. The section cited is as follows:

"If the plaintiff fail to prosecute his action with effect and without delay, and shall have the property in his possession, and the defendant in his answer claims the same and demands a return thereof, the court or a jury may assess the value of the property taken, and the damages for taking and detaining the same for the time such property was taken or detained from defendant until the day of the trial of the cause."

This section must be held to have no application to the facts and the pleadings herein. The...