162 Mo. App. 1 | Mo. Ct. App. | 1911
(after stating the facts).-We confine this opinion, as plaintiff’s counsel has limited his argument, to a consideration of the controversy as it may affect the stock of drugs, etc., alone. Defendant exercised no control or dominion' over the fixtures and soda fountain.
Plaintiff urges that “the court erred in giving judgment for the defendant.” Clearly this assignment cannot be sustained if plaintiff’ failed to prove his case in some essential particular. Now plaintiff brought this action to recover for the conversion of the stock on hand when the mortgage was given. That is all his mortgage covered and all his petition claimed. The conversion is alleged to have occurred some fourteen months after the mortgage was given. In the meantime, with plaintiff’s consent, Barrett had sold freely from the mortgaged stock in the usual course of business, and had purchased and mingled with it a large quantity of new but similar stock and sold and resold from the confused mass, without any attempt
Plaintiff further contends that because defendant’s mortgage, the letter to plaintiff, and the notice of sale, mentioned that defendant’s mortgage on the stock, fixtures and soda fountain was subject to plaintiff’s mortgage thereon, defendant was estopped from denying the validity of plaintiff’s mortgage on all or any part of the stock after the sale. This contention cannot avail plaintiff. In making it he necessarily assumes that he has a right under the pleadings to recover for the conversion of after-acquired property. There is no room for that assumption. His petition states only that he was entitled to the possession of the stock which was on hand when the mortgage to him was given and alleges the conversion of that alone. Whether defendant converted after acquired property, was not in issue. Then, too, estoppel has no place in the case because plaintiff did not plead it in his petition. [Keeny v. McVoy, 206 Mo. 42, 59,103 S. W. 946; Turner v. Edmonston, 210 Mo. 411, 428, 109 S. W. 33.] In this connection plaintiff complains that the fact that his mortgage did not cover after-acquired property and that plaintiff knowingly permitted defendant’s after-acquired goods to become mingled with those covered by his mortgage was a matter of affirmative defense which could not be availed of by the defendant without being affirmatively pleaded. This is
The judgment is affirmed.