Prinz v. Moses ( 1907 )

The opinion of the court was delivered by

Graves, J.:

On the trial in the district court the defendant contended that the plaintiffs were not the owners of the note and mortgage under which the goods had been taken from Levison, they having been assigned to a trustee for the benefit of creditors, and therefore the plaintiffs had no authority to maintain the action. This was the principal and controlling question litigated in the case. To establish this contention the defendant placed in evidence two deeds of trust, each being a conveyance to the same trustee, conferring power upon him to sell the property conveyed and out of the proceeds make payment of certain debts therein specified, when due, if not paid by the grantors. The description of the property conveyed reads:

“All of the stock of merchandise consisting of piece goods, clothing, trimmings, linings, etc.; also all store and office fixtures and furniture, including safe; also-all tools and implements, patterns and machinery used in the manufacture of clothing now located in the business house known as #425 North Seventh street in the city of St. Louis, Mo., and now occupied by the said B. Prinz & Co. in the conduct of a general wholesale clothing business; also all book-accounts payable to-said firm of B. Prinz & Co. as the same appear upon the books of said firm now in said building aforesaid.”

The plaintiffs duly objected and excepted to the introduction of these deeds in evidence. They were executed October 10, 1896, almost ten months after the execution of the note and mortgage, and more than nine months after the goods had been taken thereunder. It is clear that this note and mortgage are not covered by the description of the property given in the deed.

If by the words “also all book-accounts payable to said firm of B. Prinz & Co. as the same appear upon the books of said firm now in said building aforesaid” the parties intended to include this note and mortgage in Caney, Kan., such fact should be clearly shown. We are unable to find any evidence in the record which tends -to sustain such conclusion.

The jury could not have returned a general verdict for the defendant without finding that the plaintiffs did not own the note and mortgage under which the goods were taken, and upon this point the verdict is wholly unsupported by the evidence. This was an error for which a new trial should have been granted. The judgment of the district court is reversed, with direction to allow the plaintiffs’ motion for a new trial.