Zahner Mfg. Co. v. Harnish

• Decision Date: 17 February 1930
• Citation: 24 S.W.2d 641,224 Mo.App. 870
• Parties: ZAHNER MANUFACTURING COMPANY, APPELLANT, v. A. R. HARNISH ET AL., DEFENDANTS; D. A. MORR TRANSFER & STORAGE COMPANY, RESPONDENT
• Court: Kansas Court of Appeals

24 S.W.2d 641

224 Mo.App. 870

ZAHNER MANUFACTURING COMPANY, APPELLANT, v. A. R. HARNISH ET AL., DEFENDANTS;

D. A. MORR TRANSFER & STORAGE COMPANY, RESPONDENT

Court of Appeals of Missouri, Kansas City

February 17, 1930

Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.

AFFIRMED.

Judgment affirmed.

Jay L Oldham for appellant.

Nourse & Bell for respondent.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is a suit in replevin. The case was tried before the court without the aid of a jury resulting in a judgment in favor of plaintiff, but thereafter the court sustained defendants' motion for a new trial, not assigning any reason therefor. Plaintiff has appealed. The court having failed to state its reason for granting a new trial, it may be assumed that it was on the ground that the verdict was against the weight of the evidence as this was one of the grounds for a new trial set forth in the motion. [Alexander v. Allison, 224 S.W. 50; King v. Mann et al., 199 S.W. 705; Bernheimer v. Scott, 228 S.W. 523.]

It is well settled that the trial court has authority to grant one new trial to each party upon the ground that the verdict is against the weight of the evidence (section 1454, Revised Statutes 1919), and that the granting of a new trial on such a ground will not be disturbed by the appellate court if there is substantial evidence that would justify a result contrary to the verdict, and in no case will the granting of such a new trial be disturbed unless the evidence is such that no verdict in favor of the party to whom a new trial is granted could be allowed to stand. [Alexander v. Allison, supra; King v. Mann et al., supra; Bernheimer v. Scott, supra.]

Most of the facts are undisputed. In view of the fact that we may assume that the trial court sustained the motion for a new trial on the ground that the verdict was against the weight of the evidence, in stating the facts we will state those that are disputed in their most favorable light to the defendant, D. A. Morr Transfer & Storage Company, which is the only defendant that made any defense in the trial court.

Plaintiff was a corporation and engaged as a manufacturer and dealer in restaurant equipment. Defendant, Melvin P. Allen, was a dealer in restaurant equipment and defendant, D. A. Morr Transfer & Storage Company, was a corporation engaged in the business of warehouseman. Plaintiff rested its claim to the property sought to be replevined upon three chattel mortgages, each securing a promissory note. These notes and mortgages were executed by one A. R. Harnish in favor of plaintiff. The first of these notes was executed on July 1, 1921, and was in the sum of $ 5799.77. The second was dated May 15, 1922, and was in the sum of $ 3391. The third was dated June 16, 1924, and was in the sum of $ 1236.71. All of these mortgages were duly recorded and at that time constituted a first lien upon the property they covered. Subsequently all but $ 2000 of these notes was paid by the maker thereof. At the time of the making of the first note and mortgage Harnish was setting up a restaurant business, known as the Bliss Cafeteria, in the Boley building at the northwest corner of Twelfth and Walnut streets in Kansas City. The first note and chattel mortgage covered certain restaurant equipment bought by Harnish from plaintiff at the time and installed in the former's restaurant. At the time of the giving of the second note and mortgage, which likewise covered restaurant equipment, Harnish was in business at the same place. In the month of February, 1924, Harnish was forced to close this restaurant and the fixtures and equipment, with the express consent of the plaintiff, were stored in the storage house of the defendant, D. A. Morr Transfer & Storage Company.

About June 1, 1924, Harnish made another attempt at the restaurant business and at this time opened a place at 1204 1/2 Grand avenue. At that time he made the purchase of the equipment covered by the third note and mortgage. This venture was shortly thereafter abandoned by Harnish and the equipment was thereupon stored by him with the defendant storage company. After this time Harnish had several conversations with an officer of the plaintiff relative to the storage charges that were required to be paid. This officer told Harnish to "let" the storage company "go collect their storage bill." This officer testified that he consented to the storage of the property when it was removed from the Boley building restaurant but thought that it would be stored at another place. However, Harnish testified that this officer of plaintiff gave him permission to store the goods with the defendant, storage company, or the A. B. C. Storage Company. The witness selected the defendant. The officer in question admitted that he had known six months prior to the filing of this suit on January 16, 1925, that the equipment was stored with the defendant, storage company. However, plaintiff said nothing to the defendant about the matter until three days before the filing of this suit when plaintiff wrote the storage company the following letter:

"This is to advise you that we hold chattel mortgage, on all merchandise, fixtures and equipment, stored in your warehouse, by A. R. Harnish, or Bliss Cafeteria, and under no circumstances are you to permit of anyone removing or your delivering any part of such merchandise, fixtures or equipment, to anyone, excepting on our order." (Italics ours.)

It appears that after Harnish discontinued his second restaurant and stored the equipment therein with the defendant, storage company, he moved some of the articles to the place of business of the defendant, Melvin P. Allen, who sold some of them and turned over the proceeds thereof to the plaintiff. The remainder of the equipment in Allen's hands was taken by the sheriff under the writ of replevin herein. The storage company did not request plaintiff to pay the storage charges until after the filing of this suit.

This suit was brought in six counts. Each one of the first three counts is based upon one of the chattel mortgages heretofore described. The last three counts constitute suits on each of the three notes executed by Harnish and pray judgment against him for the amounts thereof with interest. Each one of these three chattel mortgages was a purchase money mortgage and each described specific personal property followed by words of a general description of other restaurant equipment at the location mentioned therein (the location described in the first two mortgages being the Boley building and in the third 1204 1/2 Grand avenue) but the property covered and described in each mortgage was limited to property purchased from the plaintiff "being the goods and property this day purchased by grantor of the said Zahner Manufacturing Company, together with all other goods heretofore purchased by grantor of and mortgaged to the said Zahner Manufacturing Company." However, neither the petitioner nor the writ of replevin so limited the property described in such writ, but they merely mentioned the specific property described in each of the mortgages and "all other goods not heretofore specifically described and now used for restaurant purposes, also, all goods to be placed in the future in said premises." (Then follows the description of the premises being the basement of the Boley building at the northwest corner of Twelfth and Walnut streets, in the first two counts of the petition, and 1204 1/2 Grand avenue, in the second count.) As before stated, the writ, with the exception of a slight clerical error, followed the description in the petition.

The...