181 Mo. App. 658 | Mo. Ct. App. | 1914
This is a suit in replevin. The subject-matter in replevin is one sixteen-horse-power traction engine, No. 2099, of the Reeves & Company manufacture. On a final analysis of the facts, it appears that both plaintiff and defendant claim the right of possession to the' engine under separate chattel mortgages thereon executed by Charles Dunard, the father of defendant, Joseph Dunard. However, it is asserted, too, on the part of defendant that he is en
It appears that Charles Dunard purchased the «engine in suit from Reeves & Company in 1902, and executed the chattel mortgage thereon to it, securing several promissory notes therein described, among which is the note of $426', dated July 3, 1902, falling due, according to its terms, November 1, 1905. All of the notes described in this first, or prior, mortgage to Reeves & Company were paid, save the $426 note above mentioned. Subsequently, in 1906', Charles Dunard purchased certain threshing machinery — that is, a separator and windstacker — from the plaintiff, Weber Implement Company, and executed a chattel mortgage on that property and also on the traction engine involved here, to the last mentioned company — that is,
On January 5', 1907, Charles Dunard, the mortgagor, wrote Reeves & Company that he had recently made a payment of thirty dollars on the note and said he would pay the small balance due soon. In the same letter he requested Reeves & Company to assign the note and mortgage to his son, defendant Joseph Dunard, and said the balance of the money would be sent as goon as the papers arrived. In accordance with this request, Reeves & Company assigned the $426 note and chattel mortgage bearing all of the credits above referred to, which, it is said, operated to extinguish the amount of the principal and interest thereon, except $15.35, to defendant Joseph Dunard, and transmitted the papers to the People’s Bank of Troy for delivery to him upon the payment of the balance due. It appears that Joseph Dunard paid such balance, whatever it was, for the evidence is not clear as to this, and the papers — that is, the note and! chattel mortgage — were delivered to him by the hank. D>e
Plaintiff learned of the proposed sale under the prior mortgage and sent its agent, Mr. Bow, to Troy, Missouri, to protect its interests under the second mortgage. It seems the "Weber Implement Company had been informed that the debt represented in the first mortgage to Reeves & Company had been fully paid, in that the money paid to the bank by defendant when the papers were assigned to him was. the means of his father, and it is to be inferred that it proceeded on that theory in sending its agent, Mr. Bow, to Troy at the time of the proposed mortgage sale. At any rate, Mr. Bow, representing plaintiff, instituted this replevin suit on that day with a view of obtaining possession of the engine then advertised for sale under the Reeves & Company mortgage, which, it is said, was owned by defendant. The mortgage sale under the first, or Reeves & Company, mortgage, then held by defendant, was advertised to take place at two o’clock in the afternoon, and Mr. Bow, in company with his counsel and the deputy sheriff, who, it appears, had the replevin writ in his pocket, went out to the place of sale. The engine was put up for sale and defendant’s counsel acted as auctioneer. Several bids were made. Mr. Bow, plaintiff’s agent, bid! for it and defendant bid on his. own behalf. While the bidding was' on, defendant’s counsel stated the terms, of the sale were cash in hand and thereupon Mr. Bow quit bidding and it is said the sheriff served the replevin writ on defendant before the property was ‘ ‘knocked down. ’ ’ On the other hand, it is said by other witnesses that the writ of replevin was not served until after that
It is argued on the part of plaintiff that the court should have peremptorily directed a verdict for it on the evidence, for it is said to be obvious that defendant merely paid the small balance due on the Eeeves & Company note with his father’s funds and in no sense may be regarded as the owner thereof through a purchase. In this connection it is pointed out that defendant was a minor, twenty years old at the time, and that he had heretofore made payments on the note for his father with his father’s means. Then, too, the letter of defendant’s father to Eeeves & Company,, dated a few days before that transaction occurred, to-the effect that the small balance on the note would soon be paid and requesting it be assigned to Joseph Dunard is pointed to in support of this, argument. However, this letter and the fact of defendant’s minority at the time are not so conclusive on the subject as to remove the question concerning the purchase entirely from the province of the jury. Neither defendant nor his father, Charles Dunard, testified in the case on the trial now under review, though it appears they ■did so on a former trial which was heretofore reviewed by this court, and we are unaided by their version of it. However, enough appears to show that Joseph Dunard was a young man actively engaged in working around, and!, no doubt, had small means of his own thus acquired. The cashier of the bank says positively that defendant Joseph Dunard called in person and paid the balance due on the note and it was delivered to him under the assignment made by Eeeves & Company. This we believe to be sufficient to render the question as to whether he purchased the note or merely paid the balance with his father’s money and in his behalf as one for the jury. On a former trial of the ease, the court peremptorily instructed a verdict for plaintiff — no doubt on the theory that it did not suf
It is entirely clear that defendant must rely upon his mortgage and may not successfully assert that he owns the engine by virtue of a purchase at the mortgage sale above adverted to. It is obvious this sale was never consummated so as to effect the vesting of title in him. It is true defendant had advertised it under the Reeves & Company mortgage, which he held, and it is true, too, that there was competitive bidding thereon between him and Bow, who represented plaintiff, but upon the announcement by defendant’s counsel, who performed the office of'auctioneer, that the terms of the sale were cash in hand, Bow withdrew and the engine was “knocked down” to defendant at $505. No payment was made on this alleged purchase, and, of course, no title passed to defendant thereunder, for the case is not one where he purchased from a trustee, but rather one where he thus purchased under his own mortgage at a sale conducted by his attorney. What really occurred at the time of this alleged sale is about as follows: Upon defendant’s counsel announcing the terms of the sale to be cash in hand, plaintiff’s agent,
From what has been said, it appears the parties, plaintiff and defendant, are contending in this case with respect to the right of possession to the engine under the two mortgages. This, of course, is to be determined with reference to the time of the institution of the suit. It appearing to the satisfaction of the jury, as it did, that defendant is the holder of a prior subsisting mortgage on the engine, securing a small balance due on the $426 note, which he purchased, it is entirely clear that his right of possession is superior to that of plaintiff. Plaintiff insists that defendant possessed no right under the first or prior mortgage, because it is said he merely paid the balance due on the note for his father and with his father’s money. Thus insisting, plaintiff neither paid his claim nor offered to do so as by a tender of the amount due at any time before the institution of the suit or the levy of the writ, or at any other time, for that matter. And this being true, in accordance with the finding of the jury, defendant possessed the superior or better right
Proceeding, on the theory that if defendant had the superior right to possession of the property at the time of the institution of the suit, he was, of course, entitled to prevail, the court instructed the jury for defendant, that if they found the issue for him, and further found that, though plaintiff took possession of the engine, it no longer had it and was unable to return it to defendant, they should allow defendant the reasonable value of the engine, as shown by the evidence, at the time of the institution of the suit, not exceeding the sum of $850', to which might be added damages in the nature of interest. Moreover, the court refused to instruct at the instance of plaintiff that if they should find for defendant they should also find his interest in the engine in suit — that is, the amount remaining due and unpaid on the $426 note, wMch he had purchased — and to such sum they should add interest. Obviously the court erred with respect to the giving and refusing of these instructions, for at most
Because of this error in authorizing a recovery for defendant for $668.25, when at most he is entitled to but a few dollars and his costs, the judgment should! be reversed and the cause remanded. It is so ordered.