100 Mo. App. 660 | Mo. Ct. App. | 1903
The plaintiff sues in replevin as trustee in a certain deed of trust executed by the respondents upon a stock of millinery goods and fixtures conveyed to him to secure a note executed by respondents to Frankel, Frank & Company, wholesale milliners in Kansas City, Missouri. The note was for the sum of $905.30, and dated, as was also the deed of trust, the 8th day of June, 1901, and due one day after ■date. At the time of the execution of the note and deed ■of trust, as well as at the time of the issuing of the writ herein, the property in controversy was situated'in a building at number 1300 Grand avenue in said city, which building was owned by Jenkins, who was the respondent’s landlord. At the time of the execution of the note and deed of trust respondents were indebted to the appellants for millinery goods bought by them from appellants and also indebted to Jenkins, their ■landlord, for rent, and the note was made to include both of said indebtednesses. On September 20, 1900, Mrs. McKillip rented said building at 1300 Grand avenue from said Jenkins for a term of three years, at a rental of one hundred dollars per month, payable in advance on the first day of each month. By the terms of the lease, which was in writing, it was provided: . “In default of the payment of any installment ■of rent for five days after the same is due she (the tenant) will at the request” of the landlord quit and surrender to him the possession of the premises, but for such cause the obligation to pay rent shall not cease. And it was further provided that all her property, whether subject to legal exemption or not, should be bound and subject to the payment of the rent. This lease was not acknowledged and recorded..
The evidence tended to show that Mrs. MeKillip, who had previously been in the millinery business at Colby, Kansas, on October 1, 1900, opened a store in Kansas City, Missouri, at the number already described ; that prior to going into business she consulted Frankel, Frank & Co. who advised her to rent the building in question, and also as to the fixtures she. would need, the carpets for the floors, and the shades for the windows; that they also advised her what kind of goods to buy for her business; and that she bought largely from them.
After the execution .of the deed of trust and note, no further rent was paid by respondents, and on the 8th of July, 1901, this action was instituted under which the goods and fixtures were taken by plaintiff, and later sold under the deed of trust. The jury found the goods and fixtures to be of the value of $1,800; that respondent was indebted to appellant for the amount of the note and interest at that date in the sum of $1,061.38, leaving a balance due respondent of $738.62, to which was added $41.31 as interest and $300 as special damages, making a total sum of damage of - $1,082.93. Before the motion for new trial was passed upon, respondents remitted the sum of $300 as special damages.
The contention of the appellant is: first, that the interpretation of the lease by Mr. Feller was correct as a matter of law; second, that the relation between Mrs. MeKillip and Frankel, Frank & Co. was not fiduciary, but that of debtor and creditor; and, third, that conceding the relation between said firm and Mrs. MeKillip was fiduciary in character, and the statements
There can be no doubt but what the lease in question as between the parties was a mortgage. Faxon v. Ridge, 87 Mo. App. 299; Hargadine v. Henderson, 97 Mo. l. c. 386. But as to creditors it was void because it was not acknowledged and recorded. Mead v. Maberry, 62 Mo. App. 557; R. S. 1899, section 3404; Kendall B. & S. Co. v. Bain, 55 Mo. App. 264; Jewit v. Priest, 34 Mo. App. 511.
As the lease was not a formal mortgage giving the landlord the right to enter and take possession of the goods and sell them, he would have to resort to the courts in some form of action to enforce his mortgage. This, appellant does not deny, but claims that he could have maintained replevin for the goods. In our opinion, he could have so maintained an action of replevin upon the failure of the lessee to pay the rent, as he was entitled to have the security applied for that purpose. Such being the law, the statement of plaintiff that the lease was a mortgage and that the landlord thereunder could in five days take all of respondents ’ property w.as not a false representation and misstatement of the law, but for all practical purposes it was true. But it was not true that said landlord’s claim for rent would be superior and prior to that of Frankel, Frank & Co. as represented by plaintiff, but it would not for that reason give respondents a cause of action for it could not be a matter of any pecuniary interest to them. And it must .be conceded that representations in order to be actionable must be such as would effect the pecuniary interest of the party seeking redress.
It is primary law that representations in order -to be actionable must be false. The respondents having failed, as we have seen, to prove that the alleged representations were false, it follows that the finding and judgment can not be sustained.