Crawford v. Benoist , 97 Mo. App. 219 ( 1902 )

BLAND, P. J.

— The action is for conversion. The petition was in the ordinary form. The answer was a general denial. The verdict and judgment were for the plaintiff from which defendant duly appealed.

The evidence is that one A. E. Warrendorf, in June, 1899, was the publisher of a weekly newspaper, in the city of St. Louis, called the “Echo;” that in the prosecution of his publishing business he used the name “Echo Publishing Company” and had over his door the sign “Echo Publishing Company.”

On June 26, 1899, he executed to plaintiff the following promissory note.

“$300. “St. Louis, Mo. June 26, 1899.

“Three months after date I promise to- pay to the order of O. C. Crawford, three hundred dollars — value received, negotiable and payable, without defalcation or discount, with interest at the rate of six per cent per annum from date. Payable at

“The Echo Publishing Company,

“By Arnold E. Warrendorf, Manager.”

On the same day, to secure the payment of the note, he executed the following chattel mortgage:

“Know all men by these presents, that the undersigned, the Echo Publishing Company, by Arnold E. Warrendorf, manager, of the city of St. Louis, State of Missouri, in consideration of the sum of three hundred dollars to them paid by C. C. Crawford, of the city of St. Louis,.State of Missouri, do sell, assign, transfer and set over unto the said C. C. Crawford, his executors, administrators and assigns’) (here follows a description of the property, etc.).

The signature of the deed is as follows:

‘ ‘ The Echo Publishing Company, by A. E. Warrendorf, manager.”

Attached to the deed is the following affidavit:

“A. E. Warrendorf, being duly sworn on his oath says that the Echo Publishing Company is the legal and absolute owner of the personal property above described and that the same is free from all claims and liens whatsoever.

“A. E. Warrendorf.”

The mortgage was filed for record on June 28,1899. Subsequent to the filing of the mortgage for record, defendant obtained a money judgment against Warrendorf upon which he sued out an execution and caused' to be levied upon and sold the larger part of the property described in the plaintiff’s petition and^in the mortgage. At the sale William M. Tompkins became the purchaser of the property and afterwards sold it to defendant. Before the sale was made plaintiff gave the defendant written notice that he (plaintiff) had a dnly-recorded mortgage on the property executed by Warrendorf to secure the note therein described.

In respect to the note of $300, plaintiff testified that he let Warrendorf have $235 in money and a note for $50 on Mr. Fishback, on which there was due $15 interest ; that the Fishback note was made to him and signed by Fishback; that Warrendorf was not a security or indorser on the note; that he understood from Mr. Fish-back that Warrendorf owed him (Fishback) and had agreed to take up his note in part consideration of the loan.

The Fishback note was several years overdue at the time and defendant offered to prove that the- note was worthless; that plaintiff never made any effort to collect it for the reason he knew Fishback to be insolvent. This evidence was offered with a view of showing that plaintiff indirectly exacted usurious interest of Warrendorf. On the objection of plaintiff this evidence was excluded.

At the close of plaintiff’s evidence and again at the close of all the evidence, defendant offered instructions in the nature of demurrers to the evidence which the court refused.

At the request of plaintiff, the court instructed the jury as follows:

“The court instructs the jury, that if you shall find from the evidence that Arnold E. Warrendorf was doing business under the name and style of the Echo Publishing Company, Arnold E. Warrendorf, manager, in the city of St. Louis, Missouri, and became indebted to plaintiff, and executed a promissory note to him for the sum of $300, the amount of his indebtedness due plaintiff, in the name of the Echo Publishing Company, Arnold E. Warrendorf, manager, dated June 26, 1899, and also at the same date executed in the same manner a chattel mortgage upon the personal property in controversy to plaintiff for the purpose of securing the payment of said indebtedness, and said chattel mortgage was filed for record in the office of the recorder of the city of St. Louis, and that said indebtedness is still unpaid, and that subsequent to the filing for record of said chattel mortgage and while the same was of record, one James P. Miles, as constable, took possession of said personal property without the consent of plaintiff, upon the request of Conde L. Benoist, and sold or detained the same from plaintiff, then your verdict must be for the plaintiff, against the said defendants, for the value of the personal property so taken at the time if was taken by said constable Miles, and you may if you see fit add interest thereon at six per cent per annum from the time of seizure by the constable, and if you do not so find the facts, your verdict must be for the defendant. "

1. In respect to the exclusion of the evidence, which defendant offered as tending to prove usury, it does not appear that plaintiff proposed to loan Warrendorf $235 on condition that he would take up the Fish-back note and give his own note for $300, but it does appear that the proposition was made to plaintiff that if he would loan Warrendorf $235, Warrendorf would take up the Fishback note and give his own for $300. Plaintiff did not exact or demand that Warrendorf should take up the Fishback note; that proposition came from the borrower and not from the lender, and it was immaterial whether the Fishback note was solvent or insolvent and we think the court correctly excluded the evidence as to the solvency of the note.

2. It is contended by defendant that as the chattel mortgage does not on its face purport to he the deed of Warrendorf that, as to creditors prior and subsequent, the deed is not his deed. It is undoubtedly the law that a chattel mortgage executed by the owner of the property under a fictitious name is not notice to a bona fide purchaser of the property from the owner selling under his true name. Mackey v. Cole, 79 Wis. 426. And it is undoubtedly true that had defendant bought the property without notice of the fact that Warrendorf was doing business under the name “Echo Publishing Company” and that the chattel mortgage was his act and deed he would be entitled to hold the property against tire mortgagee. But the evidence is that the premises occupied by Warrendorf as a publishing house were rented from defendant, and that defendant knew he was doing business under the name “Echo Publishing Company.”

It is also in evidence that before the sale was made plaintiff notified defendant in writing that Warrendorf had made the mortgage. In these circumstances there can be no doubt that defendant bought with knowledge of the fact that Warrendorf had mortgaged the property to plaintiff. He was, therefore, not an innocent purchaser, but a purchaser with full notice of the fact of the existence of the mortgage and of the fact that it had been executed by Warrendorf. His purchase, therefore, was subject to the mortgage and his retention of the property after his purchase was a conversions it on account of which he was liable to plaintiff for its value.

The. instruction asked by defendant and refused by the court was on the theory that the mortgage was given to secure a usurious loan and that the mortgage having been executed by Warrendorf under an assumed name was not binding on the defendant. This instruction, as we have seen, was rightfully refused as was also the. instruction in the nature of a 'demurrer to the evidence.

Discovering no reversible error in the record, the judgment is affirmed.

Barclay and Goode, JJ., concur.