*1 Amiok v. Teust Co.. 1927] .157 being a will proceeding contest in rem^the juris court cannot take subject-matter diction of the fractions. Andrews, [Bradford 208; Ohio St. Floyd A. & E. Ann. Floyd, Cas. 90 Ind. However, having held that the Milne and 130.] Chase kindred had community no such interest, of it appearing further always strangers former were utter to the latter and to the of cause action stated, we conclude and hold that petition the second amended did not relate back filing original to the date of of petition; and the Chase kindred were barred the Statutes of Limitations contesting the will. Appellants finally insist that defendants permitting, without objection, making an amendment the Chase parties plain- kindred any right tiff waived to have their demurrer sustained. The record does given not disclose that object by defendants were opportunity timely plaintiffs service apply definite notice when would permission the court for to file their second petition. amended special further appears argued demurrer was filed and thereto, objection part plain- the cause submitted without on the appellants,, tiffs. On this state of the if for no reason, record other position urge any right are no that defendants waived to have their demurrer sustained. except Gantt, All concur, J.,
The is affirmed. sit- ting. Empire Company.
W. K. 296 W. Amick, Appellant, v. S.
798. One, May 24,
Division 1927. Separate Assignment Re- 1. MOTION TO DISMISS: No spondent’s brief does not specific assignment Errors. appeal ground appellant’s motion to dismiss the on the comply with Rule in that contains separate, errors, only pertinent assignment will not sustained where the court the effect that the trial that could be made would be one to giving respondent’s peremptory nature error in instruction committed plaintiff’s evidence, points and authorities a demurrer single question of argument are addressed to that as set out in bis brief error. delivery promis- Pledge. Note: SECURITY: 2. COLLATERAL sory security principal note amounts note as collateral pledge. partakes nature of a of the to and Liability Pledgee. general rule is Collect: -: Failure to 3. positive comply directions pledgee clear and with the failure sell debtor, prompt to collect or action to take pledgor, as debt,- constitutes apply proceeds the' collateral principal deb- pledgee, part creditor negligence such pledgor oc- loss to the for tor, liable as renders pledgee. part neglected on the action such casioned SupRemb Yol. of Missouri, Liability Pledgee: 4. COLLATERAL Failure SECURITY: Collect: Damage. pledgor A Loss or suit failing in payment to collect the note or pledgor’s principal maintained without cannot be damage by showing pledgor has suffered reason of loss or damage; negligence, *2 and the the loss burden is to show or pledgor assigned another, and where the sues has of action to who cause assignee. pledgee damages, applies the And where the and to recover the to such same rule proof is that the makers of the collateral note are all solvent depreciation property there that has been no the the value of covered mortgage, security, the also as further collateral there is contrary, assignee although evidence to the damages, such cannot recover the collateral note pledgee has matured at the time the suit tried and is the may negligent delaying failing have been or to collect it and to realize mortgage. on the 5. --: -: -: -: Bailment: Conversion: Return of Col- Payment Principal lateral: payment, Debt. Until is there or tender of payment, pledgor, indebtedness the he is entitled not security pledged a return or surrender to him the collateral as for its payment, pledgee and until such or tender the is made is chargeable possession. with the conversion the collateral in his An allegation pledgee that the converted collateral note to the his own use refusing refusing pledgor it to and benefit to return the to col- against it, sustained, damages, pledgee is not in an action the lect for pos- pledgor’s proof pledgee’s that the the is trial, collateral was in the where pledgee time and there is no evidence that session money any collateral, upon the or has failed or has collected refused to money any pledgor’s principal obligation, so collected credit no pledgee pledgor, him, proof one of tender made to or indebtedness, pledgor or and none that one for him pledgee a return or surrender collateral. demanded has W (cid:127)ti kO co co^o -S’! ? “ a* vf os OX * [2] oo ox <3o co & ’pfw CD $ [03] to-* Ha 5° CO 1-1 H -og WO® g coa >p m OX 523 ? >i (cid:127) M ^00$ S' CO - a p, o mo ca oo CO o ™(cid:127)rt £ [*] g-* (jj CO Judge Tories, L. A. Court. —Son Appeal Circuit from Buchanan Affirmed. appellant. Amich for
W. E. bond, action, as such when a chose (1) well “It is settled delivered person transferred' is accepted a third on order pledgee duty of security, it is as to a creditor collateral a,nd available; diligence to make reasonable care use ef- proper to render exertions that he is bound to use necessary he if pledged; it purpose for which fectual for the collateral; and, bring an action maker must omission, if, wrongful through act or manner liable same lost, he accountable they if are lost pledgor goods and is liable merchandise necessary pro- give them destroyed pledgee’s failure to through the n Co. 1927] TRUST Amick V. D’Arcy, 119; Dibert Kilpatrick, Mo. Bank v.
tection care.” 135; Troll App. 176 Mo. Storage Pitts, 647; Cold y. Hahn, 197 Bank v. App. Natl. Co., 186 Mo. Real Est. First agent of (2) is a trustee and App. 599. y. D’Arcy, 248 Mo. Dibert pledged property. and' must so handle the mort- duties of the (3) really no difference between the 647. There is In pledgee to his creditor. gagee creditor, the duties of a to his conveyed security and must used property is it be both cases purpose or if the If used for some other credi- purpose. for that it is or fails to prevents being purpose, for that use it for tor used pledge (or mortgage) of the contract of purpose, it is violation damages.’ an action will lie for Dobie and is conversion for which necessary Bailments, p. 220. Tender of the indebtedness is not pledged brought, before can has been con- suit where verted. C. L. sec. R.
Floyd Mayer respondent. Sprague II. M. and Chas.
(1)In
by
pledgor against
pledgee for failure
an action
enough
that it has not been
to enforce the
to show
collateral, it
has
collected,
that the
appear
but it must
from the evidence
fail-
negligent
been
and
to the
that loss resulted
206;
Cyc. 835;
Co.,
App.
31
186 Mo.
ure.
v.
Estate
Troll
Real
G-uffy
App. 432;
81
Blackwelder,
Fourth National Bank v.
Mo.
Goodell, 75
452.
Bank,
(Tex.) 303;
State
Aldrich v.
Ill.
S. W.
(2)
negligent
There is a total lack of evidence that defendant
damaged
plaintiff,
any way
pledgor’s assignee,
was in
be-
by
cause the
collected
the defendant.
collateral note had not been
contrary,
undisputed,
plaintiff’s
On the
own
evidence showed
collectible, and, moreover,
paving equip-
the collateral note is
that the
by
given
ment'
mortgage
covered
the chattel
to secure the collateral
$24,000,
note is worth
twice the face
amount
the collateral note.
(3)
previous
money
pay
A
tender of
the debt secured is an in-
dispensable
precedent
bringing any
condition'
action
Fries,
pledgee for conversion
collateral.
App.
Schaaf
Ill;
Moore,
Nevius v.
M!eClintoek v.
Bank,
Central
'
" '
SEDDON, C. This is an plaintiff action wherein appel- and damages lant' by to recover alleged seeks reason of .of respondent defendant and refusing neglecting and to make reason- able effort to collect a certain note, collateral and to enforce a cer- mortgage tain chattel securing payment of said collateral which note had been delivered to defendant as se- curity payment for note defendant, Em- made to SupREmb Yol. op-Missouri, originally petition Bass. J. P. Company, one Trust
pire said J. P. that, on March alleges count, and in one cast $12,000, for sum of to the defendant was indebted Bass the payment defendant, to secure promissory note to given his had he Empire defendant, deposited with P. Bass which note said J. dated promissory, note security, Company, as collateral Ocr $12,000, date, for the after sum twelve months 27, 1920, tober due Little- Company, David Paving Construction signed the Union & Knowles; payment said G-racie P. Rackliffe and john, J. large mortgage, amount by a on was secured chattel collateral note machinery personal property; other said paving delivery by defendant, said Bass to at the note, at of its the time time it a collectible note and -all the due and became payable, solvent, and said note could persons signing collateral note were said ought ordinary to have been collected the exercise care defendant; diligence part that, after said collateral neg- payable, failed, defendant refused became due collect collateral note lected to make reasonable effort to said mortgage securing same, or to enforce the chattel to enforce thereof; signers of said ''collateral note from permitted signers of said collateral note to become in- damage solvent and wasted, thereto to be to the of said $14,320; prior Bass in that, bringing suit, sum said consideration, transferred and set over to .valuable plaintiff right, all his title and in and to the ac- interest cruing stated; because of wherefore, plaintiff the facts Bass prays $14,320. plaintiff’s sum At the close evidence, trial, asked and was leave court to mend his petition adding a second allegations count thereto. The second’count are original, with those of the or first, identical count of petition, except that, allegation lieu of the that defendant *4 “permitted signers of said note to become insolvent [collateral] security wasted,” thereto to be and.the alleges second count “that defendant converted said- to note its own use and [collateral] by refusing benefit to J: P. using, same to Bass and return ref to ’’ make effort whatever to collect same. general The answer is a denial.
Plaintiff’s evidence tended to show sometime in 1919, the de- Empire fendant Trust Company, loaned said P. J. Bass the sum- of $12,000, gave for which he personal defendant his promissory note. The note was renewed from time time, to until 14, 1921, March when gave Bass defendant his promissory renewal note for $12,000, due ninety days after date. As collateral security for payment of his personal note, Bass delivered to defendant a promissory $12,- note 000, 1920, 27, dated October due twelve after months date, with inter- Tktjst AmcK annum, Bass, and per per payable to the order J. P. eight cent est at Littlejohn, David signed Paving. Company, & Construction Union Knowles, note, J. G-. as makers of said which Rackliffe, R. A. opinion will note be referred in this note.. chattel, payment a mort- of the collateral note aforesaid secured gage upon consistihg paving machinery equipment, of a certain roller; portable asphalt plant; Kelly a Springfield: a'five-ton road (cid:127) Kelly Springfield ten-ton Universal roller; road ten-ton tandem roller; roller; Keohring three-wheel ten-ton and one mixer. mortgage 20,
chattel dated December and was Paving Union Company, mortgagor; Bass, & P. Construction to J. recites, moi’tgagee, property described- therein is the as property Company Paving the Union & Construction is -free of all-encumbrances, except mortgage $7,500 in favor clear mortgage of Mrs. Bass, present J. P. which is sub- ject. vice-president-of Wright, Company, Mr. defendant-Trust called as a plaintiff, witness that, at time the -collateral testified note Company, delivered to defendant Trust he considered the col- good note payment note, of the "Bass lateral.
that Mr. Littlejohn, one of the of the collateral makers owned farm city property Joseph. land in .some Nebraska and St.- some Mr. Wright testified “supposed” paving machinery, also that he described in mortgage securing payment the chattel of the collateral -note, to neighborhood $20,000.” be worth “somewhere
J. testimony P. Bass principal admitted that his note to defendant Trust Company, 14,' March due dated became payable June, 1921, prior maturity.of several to the months collateral note. In September,- 1921, principal after the of Bass note Company payable, defendant Trust became due and -but before due, brought against collateral note was a suit Bass recover early part note. principal October, 1921, suit, filed an answer in which answer- he pleaded payment in principal full of his defendant, note note the basis of that of Bass in suit. The said suit answer filed maturity before the of the collateral Trial note. of the suit of Empire Company Trust P. J. Bass early part 1923, during note was not had until the January, .T923, term of'the Circuit County; Court of Buchanan after ma- turity Wright, vice-president' of the collateral Mr. note. of defendant Trust Company, everything testified he “did in the world he knew ’’ trial, get to force how the case for but could a trial until early ’the part of 1923. The trial of that cause resulted in favor (defendant Empire Company herein) against' Trust P. J. $14,000, being the sum of about the amount Pass -personal accrued interest J. P. Bass fmd *5 Mo.—-11. op Supreme Yol. Missouri, 317. Couet was taken appeal an to show tends Company. herein Tbe record pending appeal and that judgment, from said
by J. Bass P. June which occurred suit, instant trial at time testified: Company, Trust vice-president of defendant Wright, Mr. A. note? collateral this you to collect ask “Q. Dr. Bass ever Did A. He collecting it? not you about Q. Did he ever talk Never. this under proceed you Q. ask Did Bass ever . Dr. has-.- . . ' A. Never on it? Q. bring suit To Never. A. collateral? ' ’’ No, ? A. sir. you do so asked Q. anybody Has ever any time. Bass, who tes- by J. Wright P. testimony Mr. is contradicted This vice-president defendant Wright, repeatedly Mr. told tified that he P. Bass testified: note. Company,'to the collateral J. collect Trust ’was him con- J. P. Bass “Q. note] told the note You [the go [Wright] and collect you him ahead did paid, but tell sidered you him to Q. expect collect Yes, Did note? A. sir. the collateral you Q. time told was the last thought .A. he When it? I would. him Q. told You never A. I don’t remember. him-that? I expect 1921? A. you September, brought he suit after (cid:127) Q-. you you that after you expect what tell I did. Not him —did remember, T A. I suit? don’t but your had- filed answer Q. you many Sep- Did him after good told him before. tell times you your brought suit in claimed tember when he note 1921— Q. paid? you Yes, A. sir. . Didn’t know the collateral . . A. I pay lay- was not sir. didn’t attention to it. No, due then? ing in I with anything bank. to do it. It was left in his didn’t have Q. only hands. This was the note he had as collateral? A.; Q: go I told him ahead collect it. Whether it was due ’ ’ ? Yes, go or ‘not A. it. and collect Wright Mr.- testified that, after the collateral due, note became Company defendant Trust nothing had done toward the collection of note, gave as the non-action, reason for defendant’s had attorney informed been its that defendant , could not anything, do inasmuch as Bass had filed an answer in the Empire Company suit the principal note setting up plea of said note, and if Bass prove that paid principal note, could he had then defendant had no. title to 'the collateral and defendant would have return Wright to Bass. collateral testified further that defendant had return Bass; offered to note to that the had renewed; note not been and that defendant still retained col- possession. lateral its Plaintiff evidence, introduced in as an admission of defendant’s officer, testimony certain of Mr. Wright taken a former action be- Tbtjst *6 Amick 1927'] “Q. "What Bass, follows: as Company and Trust
tween to have bank by the made [defendant] if been efforts, any, have A. Hadn’t by Dr. Bass? deposited which was paid collateral.note this on the col- any action right to take any hádn’t any, we been because Yes, A. sir. now? note Q. that collateral You have lateral. know. . . . Á. I it? don’t Q. yon do with 'What do intend to note? A. Q. Why you no collect made effort yon expect to make Q. Do right try to"collect it. We had no depend on advice A. collect it? That will effort the future to try Q. you intention at this time to my attorneys. But have no yet.” with them it? A. I haven’t consulted collect testimony in as to the positive the record There is no direct or solvency collateral note. The insolvency the makers collectibility testimony bearing’ upon the only record we find Wright, vice-president of de- collateral note of'the of.Mr. “Q. note, Is this col- Company. fendant 'He testified: this Q. you note, lateral is it A. I think so. Do collectible? A. regard Paving Company good? Yes, sir, still this Union note as Q. good you regard change it as was. Do know as it ever parties signing’ note, that has been made in this the situation of say Q. year no, A. thing, you in the last ? Not a sir. as far So, they know, by still machinery, mortgage own this this chattel ? secured They A. I do far as know.” stationary Joslin, engineer, charge
One testified had that he portable plant of the Union & Construction Com- asphalt Paving pany,' mortgage described in the securing payment chattel note, years; for period four plant three or that the was 'Paving Company last used at Nebraska City, Nebraska, and Paving Company City finished its- work at Nebraska about July 12, 1921, at which time Joslin’ asphalt plant, drained the took parts therefrom, brass up plant boxed so that it would not deteriorate; asphalt plant the reasonable value at that $15,000, time was 'that the' machinery value other' equipment described' in mortgage the chattel made the Union & Paving Company Construction making about $9,000, ag- was. gregate plant value portable asphalt paving equipment covered the chattel $24,000. about is no There in the record value plant said and machinery depre- has July, ciated since 1921. The record does not show that plaintiff, or assignor, J. upon P. has made demand defendant return the collateral' or that either or Bass has ten- defendant, dered to the pay, offered to the amount of the principal and-interest due defendant J. P. Bass. Defendant offered testimony in its behalf on the trial. op- Supreme Yol. Missouri,, CouRT
i—i CD. peremp- requested evidence, defendant plaintiff’s close of At the evidence, plaintiff’s of a demurrer in the nature tory instruction Thereupon, plaintiff court. trial instruction aside, the same set to move with leave nonsuit involuntary to. took an nothing by suit .plaintiff take rendered plaintiff its day recover without go hence that defendant involun- set aside motion to unsuccessful After an costs herein. appeals to this court. trial, plaintiff tary for a new nonsuit and dismiss the with mqtion outset, we are confronted I. At the -taken us by respondent, appeal, which.motion filed with.the respondent’s mo- ground of thereof. the submission case *7 .this comply with Rule of appellant’s is that brief tion does appellant for requires that “the brief which court, Assignments. by allege errors committed the distinctly siiau the and, “no which violates this court,” furthermore, trial brief by motion, by Respondent, rule will be court.” its considered the penalty 15, prescribed invokes the for a of our violation Rule provides: any appellant any.civil Rule which “If in case fail , comply to court, with-the rule the the numbered when hearing, appeal, cause is for will error; called dismiss the or writ of or, option at the of the respondent, cause the .continue cost .the ’’ party separate of in Appellant’s default. brief contains no and court, specific assignments of errors the trial How- committed ever, clearly it is evident from an examination herein record assignment that but one made, namely, of error can be trial giving court committed in error peremptory defendant’s instruction in plaintiff’s the nature evidence, by demurrer to reason of which trial action court forced take an involuntary nonsuit. clearly points It is evident that authorities, and printed argument, appellant’s set out brief, are addressed to single question being of error. Such case, we constrained are. respondent’s overrule motion to appeal dismiss the and to consider only assignment of error which can be raised the record before us. assignments If other of error were available to appellant, might disposed we be to sustain the motion to appeal, dismiss the the reason that it duty is not the of this court to search the record for error appellant does not to .distinctly point see.fit out to this on appeal. court But where apparently there is possible but one as- signment error, here, appellant’s brief clearly is addressed to a discussion of error, give court will consideration to the same, although appellant .assign does not the error in so many words. respondent’s motion the appeal dismiss is accordingly' over- ruled, pass we to a consideration of question whether the TRUST Amick V. 1927'} instruction, there- peremptory V giving court
trial erre.d involuntary nonsuit. take an forcing-plaintiff appellant respondent, as urged II. is of said mortgage securing payment the chattel note and the collateral agent as the trustee the- note,. holds wrongful act, negligence, if, through Bass, and pledgor, J. P. impaired, value is lost its respondent, omission of be State, respondent must this then, the established under law goods pledgee of manner as the the same held liable damages to (i. corporeal property) liable e., and merchandise destroyed through corporeal is lost or property if such necessary give protection and care. failure to pledgee’s delivery prom that the of a question, we but think, There can issory of a note as collateral security pledge. [Winfrey of, a to, partakes .the amounts nature App. 115; Smith, Mo. Strother, 145 Central Trust Co. Mo. l. App 106, c. Jones Collateral Securities
Pledge. (3 Ed.) text-writer, last men pie(jges p] see. security’ “The and ‘collateral’ text, says: terms ‘collateral tioned negotiable corporate designate pledge paper, shares used are distinguished pledge stocks, personalty, incorporeal other questioned general corporeal it be that the chattels.” Neither can court, effect rule, this as laid' down to the failure comply positive with clear directions of the *8 prompt or debtor, action to collect sell pledgor, principal or to take apply upon principal debt, the proceeds the con the collateral part pledgee, on the creditor of stitutes such or negligence principal debtor, renders to pledgee the the liable Negligence pledgor in the occasioned to tlie loss of Pledgee. piedgor hy negligence, such on part pledgee. the the of by rule Exchange is so announced this court National Bank 119, 204 Mo. Kilpatric, by and has been followed the several Pitts, Appeals Storage Courts of in Union & Cold Warehouse Co. v. App. 176 Mo. 134, Hahn, National Bank v. App. First 593. That is in this law State is conceded the the-established such respondent of brief filed herein.
Respondent, conceding foregoing principles the law, established contends, however, that the appellant prove burden devolved to actually damage that loss or appellant, assignor, resulted to or to his Bass, respondent’s J. P. from failure to make effort reasonable to collect, to the collateral note and enforce the chattel Loss mortgage securing payment of the same, appel- and that Damage. faj]e(j sustajn iant to the proof, inasmuch burden proof the resulting contained record herein discloses no loss or SupRemb Missouri, .Yol. hence, respondent Bass; P. assignor, to J. damage appellant, to his giving de- .by trial court committed the error was
insists plaintiff’s case. at the closé peremptory instruction fendant’s total lack of respondent there is a contended is furthermore handling of the negligent the evidence herein that defendant Bass, by an- Bass, inasmuch as J. P. collateral delivered to it note) in suit' the’maturity (prior filed swer principal brought by Company against Bass’ to collect the Trust noté, and principal pleaded payment full of said note of had’ establishing payment eventually prevail said suit should Bass thereupon will pledge said the 'collateral Company return must become ineffective and the Trust allegation made discussing, however, Bass. Without the effect ob- proven, upon Bass in if the duties and aforesaid, his answer ligations respecting enforcement of Cpmpany by Bass, pass we to a consideration of delivered to question imposed upon appellant is whether burden herein prove assignor, Bass, damage actual has sustained' loss respondent’s by reason of non-action in the enforcement the col- lateral, so, appellant if and, whether has burden sustained the proof respect. in that general Cyc. rule is thus in'31 835: stated “In an action .
against pledgee collateral, failure to enforce not enough it is collected; to show that it has not been appear, but it must negligent, has been pledgor that loss has resulted negligence. Upon by ,the' pledgor an action pledgee for failure diligence exercise due the enforcement of collateral, up or where pledgor diligence sets such lack of as a defense to a on obligation,' suit the creditor must ac- count for collateral, as in the case of loss; their having but done so, they the mere fact that have prima- not been collected is even faeie negligence, and the burden on is prove ' (cid:127) damage.” Yan Zile, in his (2 Ed.) treatise Law of Bailments see. p. says: required “The is ordinary diligence to exercise is for ordinary liable negligence, so loss that is the result of ordinary negligence of the bailee property while the in his custody and under his control would render him liable to thé bailor or owner. proof The burden of in such cases *9 pledgor, as is alleges i't he negligence, the and it is also incumbent upon him to shotv damage the by reason negli- occasioned such gence.”
Jones on Collateral (3 Securities and Pledges Ed.) sec. 702, p. 830, held,that states the rule thus: “On hand, the other it is actual or prejudice loss the the is pledgee’s criterion the lia- v. TRust Amick 1927] negligence for charge indorser or prosecut: the for bility failure part'of neglect on the the Mere of the collateral. collection
ing the that loss has oc- proof securities, without collecting the creditor owii. his the securities will not make neglect, through such curred liable the creditor in order to hold that, . . would . seem made should be enforcing it collateral delay in the negligence or a,t the solvent time that note appear maker of the insolvent.” matured, became and afterwards of Bailments the Law standard treatise on Sehouler,
Mr. in his collect bound to “And where Ed.) 208, p-. even (3 214, remarks: sec. mind, responsibility, we must bear all, security pledgee’s the the may negligence have'con- to which is limited to the aetioal loss tributed.” text-writers as afore- eminent foregoing rule, announced damages pledgor to recover that, in actions the to the effect
said, part .failing pledgee the alleged negligence on reason of pledgor to collateral, is the burden to enforce or collect - damage resulting loss or prove and, also, adjudicated eases. ample support in the pledgor, to the finds (Miss.) learned Steger & M. Ch. Bush, In Smedes Mississippi in thése announced'the rule Chancellor of State I from debtor party, “Now admit that who receives words: - security for his paper person, debt, of a third own by: collecting if it diligence it, that, is lost is bound to use due any delay his, responsible amount, for the and will be he becomes debt, having something, his own. But considered made more delay necessary cases; delay, mere than mere is such because if thereof, made foun- consequence no loss followed as a could not be responsibility complaint Jiand, dation on the one or of on the other.” Goodell,
In 452, 457, Aldrich v. 75 Ill. it was claimed that notes, mortgage of certain collateral secured on real es negligently mortgage tate, had failed to foreclose real estate secur ing payment of the notes, the makers which notes were ruling matter, ground 'In insolvent. the court said: “We see no liability (upon part pledgee) foreclosing Cory mortgage, any damage it has not been because shown that re wou,ld neglect mortgage, sulted therefrom. For to foreclose that there only liability be a for the neglect. caused None here appear. aught . appears, For ample, the land is debt, fair inference that.it so. previous The want of foreclosure does ap not. pear damage.” to have occasioned Kephart In Butcher, Iowa, 240, 249, Supreme Court Iowa, reviewing legal dealing after the cases and treatises with *10 SupRÉme Missouri, Vol. Cour¥
or GO-» 05? “We controlling therefore rule as follows: subject,, announces preju- actual loss better and' true rule criterion hold the of a third dice, consequently creditor who has taken the resorting to the person not pre-existing for a debt is debarred instrument although presented the original consideration, he not has clearly provided and satisfac- given dishonor, of its he can notice omission, torily not, consequence show that the debtor has such ” sustained, any injury. 2 In Murphy Bartsch, Idaho, 603, 606, plaintiff v. sued defendant interposed upon principal promissory defense note. Defendant plaintiff neglected pledged had to collect certain collateral plaintiff security for debt. Plaintiff judgment principal debt, recovered full amount of appealed. Supreme ruling Idaho, Said Court the. appeal: (pledgee’s) neglect, “There no actual evidence of his (the collateral) unless the pledged mere fact that he did not collect it If, however, must' be eohstrued. so the appellant such is the insists legal' conclusion, still negli devolves him to show that such gence damage; damage presumed resulted for cannot be —it affirmatively appear. preposterous must It would be appellant to claim a benefit from the harmless of respondent. The. question, then, respondent is not whether negligent, but whether presumed, he must without proof, to neg be. have committed such lect as in appellant’s damage. resulted There not in this record proof. Lawrence McCalmont, How. is a case where deposited *11 617; National First Mo. ’Arcy, D Dibert Kilpatric, appellant cases, cited App, 593, and other Hahn, Bank v. trial court. part of the on the support in of his claim of error rule the above opinion, do not refute by appellant, in our cases cited to (appellant) upon plaintiff devolved to the effect that the burden or actual loss Bass, assignor, J. P. prove he, or his sustained that enforce the neglect failure to or damage reason of defendant’s proof clearly showed by appellant, the the In cases cited collateral. value, iñ greatly depreciated or worthless that collateral became the same; in other sell or-collect pledgee’s failure to because’of the that the proof the cited cases words, clearly in appeared from the it value, by pledgee’s of the lost, depreciated in reason collateral was or at proof in the case bar. is no such negligence or There misconduct. of the col plaintiff’s to show that makers Here, proof tended maturity of said note and at of the lateral note were solvent the time of trial instant they of the suit. still solvent the time were appreciable' proof has been no Plaintiff’s also tends to that there show plant machinery paving of covered dépreciation the value note, securing mortgage payment chattel machinery of plant thát of such exceeds amount the value is, $7,500 first thereon, two encumbrances mortgage securing payment- in favor Mrs. P. of J. Bass the second question. There is even a scintilla collateral note record, find, tending far as been to 'the so we have able show that the makers of the collateral note have become insolvent note, maturity paving plant since the of the collateral or that machinery, mortgaged payment secure the collateral substantially depreciated value, or have' have been wasted. As suming, deciding, plaintiff’s -proof without so herein is sufficient handling collateral, establish defendant’s nevertheless, plaintiff’s proof we think that is insufficient to show that plaintiff,' assignor, Bass, any of his J. P. has suffered actual loss or damage by negligence, any if reason of defendant’s be, there premises. plaintiff’s recovery It therefore follows that action for the alleged negligence because of defendant’s fails for want prove resulting or evidence to establish plaintiff, or loss doomage assignor, Bass, or and hence the court did not err in giving peremptory respects instruction for defendant as the first count of petition. SupRbmb Missouri, You. in. error trial court committed that the do we think
MIL Neither respects second peremptory instruction giving defendant’s recovery of count seeks petition, count of the under^ by defend- damages for of the collateral the conversion Conversion. clearly collat- ant. Plaintiff’s evidence shows ac- of this possession was in at the time the trial eral defendant’s sold or tion, the collateral had been cannot be said that so placing be- disposed defendant, thereby the collateral otherwise yond beyond possibility the control or reach of defendant upon Bass’s restoration to Bass any obligation Neither is there to defendant. proof herein that defendant has sum collected collat- eral and has to credit collected failed refused sum so principal obligation, thereby converting proceeds Bass.’s proof made defendant’s use. There is no tender by plaintiff, Bass, assignor, of the amount of the proof indebtedness of nor is there the record that plaintiff, assignor, Bass, or his has demanded of defendant re- *12 turn, surrender, or pledged. of Fries, Schaaf v. 90 App. 111,
In plaintiff, wherein as adminis- tratrix of estate, her deceased husband’s sued defendants to recover damages alleged for the corporate conversion of certain shares of by plaintiff’s pledged, stock deceased husband as collateral for the of owing indebtedness him to one of defendants, Goode, J., speaking Ap for the St. Louis of peals, said: “We are at confronted the threshold of the ease with question': the plaintiff Was bound to tender the amount of the promissory note as condition precedent maintaining to action this to recover for the conversion of pledged the stock which was to secure its payment? . An action trover assumes an im right possession mediate to property plaintiff. .the But the right has no possession to pledge until he pays, or pay, tries to he Any what owes. damage he sustains the wrongful sale on injury account of actually done to property, expense getting back, it may he appropriate recover an action; but the thing itself, only value, its after he becomes entitled pos to its session keeping undertaking. Steer, v. [Johnson B. N. C. 330; S. Suckling, Q. Donald v. 1 L. R. B. 584; Halliday Holgate, v. L. 299; R. 3 Exch. Cooley Ed.) (2 on Torts The Schaaf es 531.] tate still Theresa owes Fries dollars, nineteen hundred [defendant] if the sale was a nullity, and an action for the conversion of the shares will not lie the defendants if no offer discharge was made to the debt. What is there to show the stock would not have been sur rendered if the offer had been made? any there Is evidence to prove plaintiff right was her redemption? denied We find none. Amiok v. Trust 1927'] least or at original pledgee, reach of the still were The shares them power to restore within their defendants. two to plaintiff entitled which performed the condition
when tender previous events, a At all ... restoration. demand high indispensable by held secured, has been money, pay to debt cited, similar cases authorities, besides those above controlling Talty Bank, 120 Mo. v. Central to this one. [McClintock fol They must be S. Co., U. Savings & Trust 321.] Freedman’s to no offer plaintiff’s case fails because is, result lowed, and the ’’ made. was ever pledged stock stood discharge note for which the was an 127, l. c. which Bank, In Central McClintock v. corporate alleged conversion action recover damages must said: “But it question, court, speaking this to the same stock, tender, or offer to payment, been no be remembered there has pledged to stock pay the amount of the indebtedness which distinguished from legal, secure, and this an to enforce action asked to equitable, rights. no time redeem. 'Plaintiff has at a sufficient did realize stock not that the sale shows case discharge .proof sum Neither is there the debt. any time, .stock, sold, exceeded that the true value tlie when therefore, nothing, before pledged. the sum which it was There law of bail which, by construction of the court liberal most ment, plaintiff could held' as was either entitled proving be possession pledged part the immediate" stock or to though proceeds pledgee, we its sale. transfer even wipe wrongful, debt, assume did have the out effect got debt wise pledged stock was secure. Until that some right pro way, legal or its out has no the stock principles ceeds. the law of This is but statement elemental pledges, [Talty and no elaboration of it is needful at this time. Savings Co.,
Freeman’s
titled to
the McClellan
have
in
$800, together
(Nevius)
with
debt
him
is
of that character
difficulty
entering a decree
terest,
but
Nevius,
perform,
performed, nor offered'to
appellant,
has not
him,
of, or a tender
requires
is,
páyment
law
what the
’’
respondent
payment of,
Moore.
executed to
$800
notes
as collateral
duly
were not
protested, and the
says:;
court
‘No
shown at the trial
to establish
loss''or damage
.
protest
,
for want
due
notice;
! .
and, in the
proof,
absence of such
we are not at liberty
presume
”
agents
duty.’
did not do their
See, also, Guffey v. Bank
(Tex. Civ.
App.),
S. W.
similar effect.
In Troll v. Real
Co.,
Estate
Notes
notes
319,
Hagan Bank,
appellant,
is not
The case of
cited
case,
applicable
pledgee,
case. In that
to the facts
the instant
conduct,
dispensed
necessity
with
pay-
its
had
tender of
principal
pledgor
express-
ment of the
debt
ly
right
pledgor
denied the
to redeem the collateral.
It was
that,
therefore ruled in
inasmuch as
that case
a tender under those
ceremony,
equity
circumstances would have been an idle
a .court of
pot
sought equitable
in which
relief would
turn him out
perform
court for failure to
an ineffectual and
act.
useless
Appellant,
proof
opinion,
our
failed
herein to show a
by himself,
by Bass,
tender
assignor,
of the amount due and
owing
to defendant
indebtedness of
or to
willingness
show a
pay
on their part
discharge
Hence,
indebtedness.
trial
court committed no error
giving
peremptory
defendant’s
respects
instruction as
the second
petition.
count of the
We
believe that the
of the circuit
right
court was
should therefore be affirmed. It is so ordered.
concurs;
Lindsay, G.,
Ellison, G.,
sitting.
not
PER
foregoing opinion
CURIAM: The
by SeddoN, C.,
adopted
opinion
as the
of the court.
judges
All
concur, except Gantt,
J.,
sitting.
at Relation and To Use of Wabash
Railway
Company
State
v. Public Service Commission
al., Appellants.
of Missouri et