| Mo. | Oct 19, 1906
This is an appeal from a judgment of the Webster Circuit Court in favor of Sarah H. Sally, Interpleader, in a suit instituted by Rice, Stix & Company, creditor, against James B. Sally, the husband of the said Sarah H., their debtor, in which certain goods, wares and merchandise, located at Lecoma, Dent county, Missouri, were seized by the sheriff on the 25th of October, 1897, under attachment process issued therein.
Mrs. Sally in her interplea claimed the property so seized, under and by virtue of a chattel mortgage, duly executed and acknowledged by the said James B. Sally on the 21st day October, 1897,' and recorded in Dent county on the 22nd day of October, 1897; given to secure the payment of a promissory note of the said J ames B. Sally of the same date for the sum of $10,500,
“Plaintiffs, Rice, Stix & Company, for answer to the interplea of Sarah H. Sally filed in this case, admit the allegations thereof that said interpleader is and was the wife of said defendant, James B. Sally, from September, 20, 1883, to the present time. Plaintiffs deny each and every other allegation of said interplea.
“For further answer, plaintiffs allege that if said defendant signed and executed the said writing, set forth in said interplea (and which is denied by plaintiffs), the same did not give to said interpleader any right, title or interest in and to the said property referred to in said interplea, the said writing, being null and void.
“For further answer to said interplea, these plaintiffs allege that said interpleader is by her conduct estopped from claiming any right, title or interest in and to the said property, and estopped from claiming the existence of any indebtedness from said defendant to herself.
“Wherefore, the plaintiffs pray judgment for the retention of said property.”
The reply was a general denial of the allegations of the answer, and, upon the issues thus joined, a trial was had which resulted in a verdict and judgment for the interpleader, from which the plaintiff appealed to this court, where the judgment was reversed and the cause remanded for new trial; and, in due course, the case was again tried on the same pleadings and from
The case on the former appeal is reported in 176 Mo. 10-7, et seq., and the elaborate statements contained in the opinions there reported obviate the necessity of a more extended statement here.
Since the case has been pending plaintiff has been substituted for Rice, Stix & Co., the original plaintiffs.
As will be observed the answer contains a general denial and two legal conclusions, with no facts stated upon which to base either of them; and the whole answer, so far as the facts are concerned, amounts to no more than a general denial of the material allegations of the petition. The material ultimate fact charged in the petition was that James B. Sally, under whom plaintiff claimed the property by virtue of the attachment process levied on the 25th of October, 1897, had, prior to that date, to-wit, on the 21st of October, 1897, by the chattel mortgage m question, conveyed the prop^erty levied upon to the interpleader. In order to sustain the averment it devolved upon the interpleader to show as against the plaintiff not only a duly executed and acknowledged chattel mortgage, but that possession of the property had “been delivered to and retained” by the interpleader thereunder, or that the same had been recorded in the county in which the said James B. Sally resided before the levy of the writ of attachment. [R. S. 1890, sec. 3404.]
James B. Sally resided in the county of Phelps. The chattel mortgage was recorded in the county of Dent, so that the only ground upon which the interplea could be maintained was that possession of the property had been delivered to and retained by Mrs. Sally as required by the statute; and, under the pleadings, that was the material issue of fact in the case. On this issue, in addition to the evidence on the first, much additional evidence was introduced by the interpleader on
££Q. Who were the clerks, Mr. Harrison, of J. B. Sally in that store? A. George Martin, Pat Smith and John Sally. When they all came up there I announced to them the fact that Mrs. Sally had a chattel mortgage executed by James B. Sally to her on this stock of goods and he had placed her in possession of it. Mr. Sally, at that time, had driven that far with us and had told John Sally to deliver his key to us. We discussed the matter with the clerks; I told them everything that must be done in order to make everybody understand that we had possession of it. I told John Sally to go and have a sign painted the first thing.*689 ... I then announced to a number of parties-there that we had possession of the store under the chattel mortgage and exhibited the chattel mortgage to them. I held it up- in my hand in that way (indicating) to the crowd.
“Q. Where were you at that time? A. I was standing right in the door of the store, in the south door of the store building.
“Q. Now, what did you do? A. Well, I exhibited the chattel mortgage and made that statement.
“Q. What did you say in connection with exhibiting the chattel mortgage, if anything? A. I said we had taken possession of the property for Mrs. Sally and in no event would she recognize any further claims of J. B. Sally and would not purchase goods in his name nor pay any of his debts; that the sales from now on would be conducted as much for cash as possible. I instructed Pat Smith, one of the clerks, to go with me to the books, and he did. I told him that all the accounts in the books belonged to Mrs. Sally. We had at that time these accounts made out in the nature of a statement, and they were endorsed on the back by Mr. Sally.
“By the Court: Q. What were those statements? A. They were itemized statements of the accounts, and on the back J. B. Sally’s name was endorsed — written on the back.
“Q. What became of those statements? A. There were ten or fifteen of them, may be twenty.
“Q. What became of them? A. I turned them over to John Sally to collect. . . . Witness continuing: I told Mr. Smith to balance all the accounts and run a red line under them.
“Q. That was the 22nd day of October? A. Yes, sir; that was the 22nd day of October, 1897. . . .
‘ ‘ Q. What did you tell him you wanted that done for? A. Well, I told hini I wanted to open up the ae*690 counts in Mrs. Sally’s name, in the entire ledger; that those accounts all belonged to her.....
“Q. Then what took place? A. I then, went around over the building to see if I could see anything of any signs. I did not find J. B. Sally’s name on anything except it appeared on some goods boxes that had been shipped there; that was the only thing I noticed with his name on.
“Q. What did you do then? A. I went to destroying everything in the nature of signs with his name on. ... I destroyed everything in the nature of signs indicating that J. B. Sally owned-that stock of goods.
“Q. Now, if there was any arrangement made to retain the clerks, state about it? A. Yes, sir; I spoke to John Sally, Pat Smith and George Martin right there in the presence of Mrs. Sarah H. Sally, and asked them if they were willing to work for the same wages and on the same terms for Mrs. Sally as they had been working for Jim Sally, and they all said they were. I told them then to consider themselves employed.
“Q. For whom? A. For Mrs. Sally; I told them to announce that fact to everybody — to announce the change of possession to everyone.
“Q. Was there anything said about receiving more goods; if so, what was said and to whom about that? A. I instructed all the clerks not to receive any goods from Rolla or from any other place that had been shipped to J. B. Sally or bought by him, which were not already in the store.
“Q. Now, then, outside of the store, did you give notice as to the condition of the store, as to who was the owner of it? A. I did to everyone I met.
“Q. Do you recollect any of them? A. I did to everyone I talked with. I went from there to Salem.
“Q. When did you return now and what took place*691 then! A. When I returned there was a crowd of customers in the store.
“Q. At what place? A. The store house at Lecoma.
“Q. How many were there then? A. There were ten or fifteen persons present.
“Q. What was done then? A. I stated there publicly and asked those parties that were there to notify others that a change had taken place, that Mrs. Sally had purchased that stock of goods, or had a chattel mortgage on it and was in possession of it and was running and operating it in her own name. I also announced that I had a power of attorney for Mrs. Sally and was in absolute-control of it for Mrs. Sally.”
He further testified that he was at Lecoma on the following Sunday and Monday and saw the sign which he had ordered, on the front of the store, the sign being a board about four feet long and six inches wide, on which was painted the words: “Mrs. Sarah H. Sally’s Store; ’ ’ that he could read it from the middle of the road.
Pat Smith testified as follows: That he was book-, keeper for J. B. Sally until the morning of the 22d of October, when Mrs. Sarah H. Sally and J. B. Harrison came to Lecoma and took possession of the stock of goods, including the books, which had theretofore belonged to J. B. Sally, being the same goods and books that were attached in the attachment proceedings of Rice-Stix Dry Goods Company against J. B. Sally. Under directions of J. B. Harrison, acting for Mrs. Sally, he sold goods for account of Mrs. Sally from the morning of the 22nd until the night of the 25th, when the goods were seized; that, under the direction of Mr. Harrison, he had drawn red lines under all accounts in the ledger and had opened new accounts for all customers to whom goods were thereafter sold; that during the entire time from October 22nd until the store was
John A. Sally testified: That he was selling goods at Lecoma in October, 1897, for his brother James B. Sally, in the latter’s store; that Mr. Harrison and his brother’s wife, Mrs. Sarah H. Sally, came to the store early in the morning of October 22nd, 1897; that he would not be positive about the day of the week, but believed that it was on Friday; that the attachment was levied on the Monday after they came there on Friday; that the store was run two days after they came there until Sunday and therefore it must have been on Friday that they came there, in the morning, about seven o’clock; that after they got there Mr. Harrison gave them notice that the store and goods had been transferred to Mrs. Sally and said that everything had been transferred to her and to change all the accounts, etc., and to give all orders in her name; that Mr. Harrison said to him that the transfer had been made by chattel mortgage; that he was already at the store when Mr. Harrison and Mrs. Sally went there; that Mr. Harrison said that the business from that time on should be carried on in her name instead of in his brother’s name, and that they should not receive any goods shipped in his brother’s name, and that they should not do any more credit business than they could help, and if they sold anything on credit to open up the account with Mrs. Sally, and that the accounts were to be changed and kept in her name; that Mr. Harrison gave orders for the bookeeper to draw a red line under each account and he (the bookeeper) changed it in that way; that Mrs. Sally told him and several there that it was her store; that Mr. Harrison said that they should go ahead
George W. Smith (the village blacksmith) testified : That he had considerable . dealings with J. B. Sally at the store and a,t the shop and all around; that he remembered Mrs. Sally coming there with Mr. Sally the latter part of the week, and knew that Mr. Harris-son was at the shop and that she was there in town; that the store was closed up> on Monday following the time he saw Mrs. Sally there the week before; that she was there Thursday or Friday and the store ran until the evening of the following Monday, about three days
E. E. Comstock (the miller)' testified: That in October, 1897, he was doing business with that store; that he had a lumber yard and mill and the store frequently gave orders on the mill, and that he also gave orders on the store for merchandise; that he recollected Mrs. Sally taking possession of the goods about October 22,1897, when he saw Mr. Harrison and Mrs. Sally about the store there; that he was notified by one of the clerks of that store “that if I should give any orders, to give them in the name of Mrs. Sally, and that if I received any orders, they were to be sent to me in her name, and my books were changed at the time. ’ ’
C. L. Taylor testified that he was to do the lettering on the sign which Chamberlin was preparing, but it was never finished; that in the meantime a sign was sent out from Rolla which he saw on the platform of the store leaning against the house on Saturday, October 23. The sign read “Sarah H. Sally’s Store.”
Mrs. Mary J. Pemberton testified that she went to the store to do her shopping on Saturday, the 23rd of October, directly after breakfast, and when stepping upon the step she saw a sign with the name of Mrs. Sarah H. Sally on it leaning against the wall.
P. M. Lenox testified that he saw the sign there on Sunday, the 24th of October; before that time he saw Mrs. Sally washing up the queensware and glassware in the store, and that was the first he knew of the store changing hands.
Ben Harrison testified • that he saw the sign on the front of the store Sunday evening and on Monday.
J. C. "Williams that he saw the sign Saturday morn
Mrs. Clara Lenox, who lived across the road opposite the store, testified that early Saturday morning she saw Mrs. Sally’s sign, from the porch of her house, resting on a bench on the porch of the store — “Mrs. Sarah H. Sally’s Store” was on the sign; that prior to the time Mrs. Sally took possession there was no sign on the store.
Mrs. Sally’s evidence on this issue was about the same as on the former trial, and George M. Tucker testified that he painted a sign for John Sally and that the substance of what was on it was “Mrs. Sally’s Store.” There was some other evidence corroborative and cumulative of the foregoing, but this is sufficient to show the interpleader’s case on this issue and for a ruling on plaintiff’s demurrers to her evidence.
On behalf of plaintiff several witnesses were introduced who testified that during the time they were respectively in Lecoma from Friday morning until Monday evening they saw no sign to indicate a change of ownership, but with this evidence we have no concern on this ruling.
I. Whatever may be thought of the action of the court in refusing to sustain the demurrer to the evidence of interpleader on the first trial, it seems beyond question that the court did not err in overruling the demurrers to her evidence on the second trial. While it is true, as was ruled on the former appeal, that it devolved on the interpleader to show that the possession of the mortgaged goods was ‘ ‘ delivered to and retained” by her before the seizure by the sheriff; that such change of possession was open, notorious and unequivocal, such as to apprise the community or those accustomed to deal with the party that the goods had changed hands, regard being had to the situation and
II. The instructions upon which this issue was submitted to the jury are not complained of. But it is
III. It is also contended that the court committed error in the admission of certain evidence tending to prove the amount and source of .the indebtedness for which the note secured by the chattel mortgage was given —■ principally, admissions of James B. Sally; but as the bona-fides of the indebtedness was not attached by the pleadings and the consideration for the chattel mortgage was proven primaffacie by the instrument duly executed, this evidence was merely cumulative and any error in the admission thereof could have done the plaintiff no harm.
Finding no error in the record calling for a reversal, the judgment of the circuit court is affirmed.