96 Mo. App. 83 | Mo. Ct. App. | 1902
This is a suit for damages for trespass. The amended petition of the plaintiff presents, two counts. Their substance is as follows:
First Count. Plaintiff charges that he was owner of 39 hogs of the value of $300, May 25,1899, and that defendant, on said date, willfully and maliciously entered plaintiff’s inclosure where the hogs were, drove them away and converted them to his own use, for which acts plaintiff asks judgment for the value of the animals and exemplary damages in the sum of $200, charging that the acts were wantonly and maliciously done.
Second Count. The foregoing facts are repeated and it is added that defendant maliciously and willfully entered and broke plaintiff’s close where the hogs were and drove them away, to plaintiff’s damage in the sum of $305, “being the value of said hogs and damages for the trespass thus committed against plaintiff’s said rights and upon his said premises.” Plaintiff also prays in the second count for $500 exemplary damages for the wanton and malicious acts alleged.
The answer of-defendant admits that, May 25,1899, plaintiff was the owner of the premises, denies that he was in possession thereof, and charges that said premises were at that time in possession of two other named persons. Defendant alleges that he was the owner of the hogs which plaintiff caused to he taken to the latter’s premises where defendant found them, May 25, 1899, and that thereupon defendant, with the knowledge and consent of plaintiff and of the persons in charge of the premises entered the latter and drove the hogs away as he says he had the right to do. The answer further denies generally the other allegations of the petition.
Plaintiff filed a reply denying all the new matter in the answer.
There was a trial before the court with the aid of a jury resulting in a judgment for defendant. Plaintiff appealed afterjm unsuccessful motion for a new trial and the saving of exceptions.
The material facts will be stated along with our rulings.
Plaintiff’s claim of title to the animals is based upon a transfer of them by Mrs. Rickey, March 18, 1899, evidenced by a memorandum to the effect that they were delivered in payment of plaintiff’s fee as an attorney in a prior case between her and the present defendant, Mr. Jones. It was the record in that case which was excluded. In substance, it shows that the plaintiff therein, Mr. Jones (now defendant), brought a statutory action of replevin against Mrs. Rickey, before a justice of the peace in Audrain county, March 2, 1899, upon a statement claiming possession of certain hogs
The offer of this record was declared by plaintiff’s counsel to be “for the purpose of showing a splitting of his cause of action by Mr. Jones against Mary E. Richey. ’’ Objection being made to the competency and relevancy thereof the record was excluded, and exceptions duly saved.
The previous testimony in the case at bar tended to •show that business dealings between Mrs. Rickey and Mr. Jones had taken place leading to the replevin suit before the justice. Mr. Jones claimed that the hogs in question and other property were covered by a chattel mortgage executed by Mrs. Rickey to him, September 20, 1898 (recorded on the same day), to secure a note for $1,352 and interest, payable twelve months thereafter. There was an acute conflict of evidence as to the amount of liability which remained at the time when the dispute arose between the parties to that loan. We need not go into that issue fully. It appeared that the hogs had not in fact been taken from Mrs. Rickey until she delivered them to plaintiff as his fee for services to her in the replevin suit. Afterwards Mr. Jones discovered them on the premises of plaintiff and took them away. Defendant claims that he did so by consent of the persons who had them in charge. Plaintiff’s testimony is to the contrary, but that question was submitted to the jury by plaintiff’s third instruction and by the fourth for defendant, so we need not pursue the subject further. It is mentioned to indicate the state of the facts bearing on the admissibility of the replevin record.
‘ ‘ The property hereby sold and conveyed to remain in mortgagor’s possession until default be made in the payment of the said debt and interest or some part thereof; but in case of a sale or disposal, or attempt to sell or dispose of said property, or a removal of, or an attempt to remove, the same from the county in which it is now located in the State of Missouri, or an unreasonable depreciation in the value thereof, the said mortgagee, or legal representative or assigns, may enter the premises and take possession of and remove said property, and demand, replevin, trespass or right of action for damages by reason thereof are hereby waived by said mortgagor.'
“Upon taking possession of said property, or any part thereof, either in case of default or as above provided, the said mortgagee, or legal representative, may proceed to sell the same, or any part thereof, at public auction, to the highest bidder, for cash, at place to be designated by said mortgagee, said place to be in the county in which said property is located, at the time of advertising, first having given five days’ public notice,” etc.
The learned counsel for appellant submitted an interesting and forcible argument to show that defendant (then plaintiff) by the amendment of his statement in replevin, withdrew the hogs from the scope of- that action, and that he abandoned all claim to the hogs in consequence.
How far the judgment in that case could be used as an estoppel in favor of one not a party thereto, in view of the decisions in Missouri (Henry v. Wood, 77 Mo. 277; State ex rel. Hospes v. Branch, 134 Mo. 592) it will not be necessary to inquire. It can not be doubted that a party may often bar future litigation by splitting a valid cause of action, involving several particulars so as to bring about a result which will preclude his vexing his adver
On the other hand, even the splitting of the cause of action amounts to nothing if the party affected thereby consents to it. First Nat. Bank v. Nooman, 88 Mo. App. (K. C.) 372; Turner v. Lord, 92 Mo. 117; Reed v. Foote, 36 Mo. App. (K. C.) 470; Kavanaugh v. Shaughnessy, 41 Mo. App. (St. L.) 657.
The plaintiff in replevin was demanding possession of the personal property in question under the chattel mortgage already quoted. It was overdue and, according to his version, unpaid. Various contentions are made in this case to establish a settlement and other defenses to the mortgage. But Mr. Jones evidently regarded that document as valid and in force. The judgment for possession of the chattels described in his amended statement before the justice is an adjudication of his right to possession thereof.
After the condition of payment in a chattel mortgage is broken, the mortgagee is entitled to the possession. Robinson v. Campbell, 8 Mo. 364; Bowens v. Benson, 57 Mo. 26.
WThere the power of sale, as here, extends to all or to any part of the property mortgaged, by virtue of the contract of the parties, it can not justly be regarded as a splitting of the cause of action where the mortgagee sues in replevin for only a part of the property. He is fortified in so doing by the terms of the agreement he seeks to enforce.
Even where a plaintiff splits his cause of action indeed, but without knowledge of facts to charge him with the legal consequences of doing so, the doctrine invoked by plaintiff has been held inapplicable. Moran v. Plankinton, 64 Mo. 337. In the case before us the debtor agreed that the'mortgagee might, on default, take possession of the whole property ‘ or any part thereof ’ ’ and might procófed “to sell the same or any part thereof.” That language amounts to a consent to the mortgagee to
It might be, and it often is, the duty of one invested by a mortgage with a trust for sale to sell in parcels and not in bulk. Jones, Chattel Mortgages (4 Ed.), sec. 797. In asserting the right to exercise the power of sale, according to the terms agreed, Mr. Jones did not split his cause of action in any respect. And so the learned judge was correct in his ruling.
The judgment is affirmed.