J. H. North Furniture & Carpet Co. v. Davis

86 Mo. App. 296 | Mo. Ct. App. | 1900

SMITH, P. J.

Action in replevin. It will be seen by reference to 76 Mo. App. 512, tbat we there beld tbat tbe chattel mortgage, under which tbe plaintiff claimed to be entitled to possession of tbe property in dispute, was invalid on account of tbe insufficiency of tbe description therein. We may presume tbat tbe trial court on tbe retrial of tbe case adopted tbat view. Tbe question of tbe sufficiency of tbe description in tbe mortgage can not be again raised on tbis appeal. As to tbis case it must be reparded as having been finally determined on tbe former appeal, or as res adjudicata. Hombs v. Corbin, 34 Mo. App. 393, and cases there cited; Walser v. Graham, 60 Mo. App. loc. cit. 327; Cherry v. Railway, 61 Mo. App. loc. cit. 305.

We there further beld that tbe mortgage was valid as between tbe mortgagor and mortgagee, as to third persons with actual notice and as to purchasers, creditors and tbe like having no interest in tbe mortgaged property;- and tbat since there was no evidence tbat tbe defendants were in any way interested as subsequent purchasers, attaching' creditors or otherwise, they could not be prejudiced by giving effect to tbe mortgage. And tbe final conclusion was reached tbat tbe trial court bad erred in its action sustaining tbe defendant’s demurrer to tbe evidence.

The cause was accordingly remanded and on tbe second trial thereof, which was by tbe court without tbe intervention of a jury, there was a special finding that the defendants were purchasers for value without notice. As to this issue there was some conflict in the evidence. It can not be truly said that there was a total absence or no substantial evidence at all adduced in favor of the affirmative... It has been often declared by us that where a cause is submitted to the court without the aid of a jury and it is thereby intrusted with the determination of the questions of both law and fact its findings of fact will be conclusive on us if there be any substantial evidence to support them. Swayze v. Bride, 34 Mo. App. 414; Caruthers v. Williams, 58 Mo. App. 101; Arnold v. Ins. Co., 55 Mo. App. 149; Smith v. Zimmerman, 51 Mo. App. 519.

The plaintiff further insists that as there was a deposit of $54.10, made by defendants with the justice before whom the cause was instituted as being the amount due on the mortgage, which after appeal the justice deposited with the clerk of the appellate court, that this amounted to a tender by which the defendant admitted the validity of the mortgage and the plaintiff’s right to recover. The justice testified that before the trial one of the defendants deposited with him the above specified amount as being the amount due on the mortgage which he understood to be a tender. Mr. Lavelock testified that after the suit was brought he examined the record of the mortgage and saw the three notes for the first time and it was claimed there was only two of these remaining unpaid. The plaintiff claimed all three were unpaid. Being under the impression that only two of the notes were unpaid and for the purpose of putting an end to the controversy he deposited with the justice the amount of the two notes for the acceptance of the plaintiff. He further testified that when the deposit was made he told the justice that it was not made as tender or as an acknowledgment of any principal or interest or either, bnt for plaintiff if it “wanted to accept it in settlement of the whole thing.”

There was no tender made by defendants to plaintiff or its agent, consequently there was no common-law tender. 25 Am. & Eng. Ency. Law, 918 and cases there cited. Nor was there a statutory tender for the reason the deposit was not made with the constable. R. S. 1899, sec. 3944; Voss v. McGuire, 26 Mo. App. 452.

Nor can we see that the action of the justice depositing the amount with the clerk of the appellate court after the appeal, whether or not made with the consent of defendants’ attorneys, can be construed into a tender either at common law or under the statute.' Any way, the trial court specially found there was no tender, which, under the rule previously stated, must be regarded as conclusive on us.

The judgment will accordingly be affirmed.

All concur.