137 Mo. App. 551 | Mo. Ct. App. | 1909
— On September 29, 1905, Mary and C. Campbell, executed and delivered to F. D. Roberts a chattel mortgage on two black horse-mules each fifteen and one-half hands high. This mortgage purported to be given to secure the payment of a promissory note given by said Campbells to said Roberts on the date aforesaid, for $500, due ninety days after date and drawing interest at eight per cent per annum, but was in fact executed to indemnify Roberts as surety on an appeal bond in a cause appealed from a justice of the peace to the circuit court, wherein G. W. Bradley was plaintiff and the said Campbells defendants. Said mortgage provided about the possession of the property as follows:
“The.property hereby sold and conveyed is to remain in our possession until default be made in payment of 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 or attempt to remove same from Pemiscot county, Missouri, or any unreasonable depreciation in value thereof, then the said F. D. Roberts, or his legal representative, may take the said property or any part thereof, into his possession.”
II. Complaint is made because the court' refused to declare at plaintiffs’ request, that as their mortgage was given by Campbell to secure a contingent liability which was outstanding against plaintiffs when this action was instituted, and also when it was tried, said mortgage was given for a valuable consideration and plaintiffs had
III. The court refused to declare Tinsley was es-topped to deny his declaration to Corbett, if it was found the latter, as Roberts’ attorney, has asked Tinsley before taking the mortgage from Campbell for Roberts, if he (Tinsley) had a mortgage on the mules in question, and Tinsley answered the mortgage he once had held on the mules had been paid off. There can be no doubt this statement would suffice to raise an estoppel against Tinsley in favor of Roberts, if the latter relied on it, as the evidence tends to prove he did. [Chouteau v. Goddin, 39 Mo. 229; Richards v. Johnson, 4 Hurl. & N. 660; Pickard v. Sears, 6 Ad. & El. 469.] The question is whether plaintiffs as assignees of Roberts can invoke the estoppel. Courts have sometimes said the assignment of a contract does not transfer any right of estoppel which might exist in connection with it in favor of the assignor; also that an estoppel based on a misrepresentation can be asserted only by him to whom the false statement was made. [Shillito v. McClung, 51 Fed. 868, 876; Citizens Bank v. Burrus, 178 Mo. 718.] The adjudications on the subject are to be interpreted,. of course, with reference to the facts of the cases in which they were pronounced; and the cases just cited and. others like them, did not- present circumstances which pressed so urgently for an allowance of the es
IY. Counsel for defendant insists plaintiffs lost the estoppel by not pleading it, but inasmuch as they had no opportunity to do so, this position is untenable. Their petition stated a cause of action and their evidence sustained it. Defendant answered by a general denial and introduced his mortgage to show he was entitled to keep the property as against plaintiffs. Testimony was introduced by plaintiffs in rebuttal, and without
The judgment is reversed and the cause remanded.