49 Mo. App. 357 | Mo. Ct. App. | 1892
The defendant, the Kansas City Towel & Laundry Company, was doing a laundry business in Kansas City, Missouri, and as an addition to their plant purchased of the plaintiff on credit a filter, giving therefor its notes; subsequently and on October 26, 1888, the laundry company executed a chattel mortgage on its plant, including the filter received from the plaintiff, to R. 8. Crohn, to secure notes amounting to
The agreement between the garnishees and Crohn, the manager of the defendant, whereby the surplus remaining in the hands of garnishees after payment of the mortgage debt was to be applied on these advances, was not in writing, nor was it acknowledged and recorded in accordance with the law respecting chattel mortgages. Plaintiff’s contention is that this agreement, though it may have been valid as between the parties, was void as against plaintiff who was a creditor of the defendant. The evidence showed the surplus was appropriated to the unsecured debt before the garnishment.
But, again, it is plain that the defendant mortgagor could not have maintained an action for this surplus against these garnishees, in the face of his agreement. This is sufficient to defeat the garnishment. For “ an attaching creditor can hold the garnishee only to the extent of the defendant’s claim against the garnishee, and he can acquire no rights against the latter, except such as the defendant had, and he is not permitted to place the garnishee in any worse condition than he would occupy if sued by the defendant.” McPherson v. Railroad, 66 Mo. 103; Reinhart v. Soap Co., 33 Mo. App. 24.
The question is presented from another standpoint. These garnishees as mortgagees (for, by the assignment of the mortgage to them, they became, practically, the original mortgagee) had an unsecured debt or claim against the mortgagor at the date of the sale of the mortgaged property, upon which the surplus herein arose. We need not decide whether the mortgagees.
The case of Hyde v. Larkin, 35 Mo. App. 365, relied upon by plaintiff, is not applicable to the facts in this case. The general manager here had authority to pay the debts of the corporation, and he did more -than this when he authorized the mortgagee to apply the surplus to the payment of such debt.
The judgment is reversed and the cause remanded.