Toledo Computing Scale Co. v. Aubuchon

NORTONI, J.

This is a suit in replevin. The finding and judgment were for defendant and plaintiff prosecutes the appeal.

The subject-matter involved is one computing scale. Plaintiff sold the scale involved to Elijah Fry, on condition — that is to say, under what is known as a conditional sale contract, by the provisions of which the title to the property remained in the plaintiff vendor until the purchase price was fully paid. The price agreed upon was $110, and Fry paid $10 down at the time of the purchase. The payment is stipulated for at $10 per month, and it appears that $40 in all was paid as the installments fell due. Fry sold the scales to one J. E. Rollins, who took them with actual notice of plaintiff’s claim — that is, of the contract between Fry and plaintiff whereby the title remained in plaintiff. Gilbert 0. Nations, as assignee of Rollins, sold the scales to Haile and Byington, who likewise took them with actual notice of the conditional sale originally made by plaintiff to Fry. Haile and Byington sold the scales to I. W. Miller, and it appears that Miller was informed of the fact of plaintiff’s claim, that they were not yet paid for and that the title resided under the original contract of sale in plaintiff.

Subsequently, I. W. Miller sold the scales to the present defendant, S. O. Aubuchon. There is substantial evidence tending to prove that Aubuchon knew the scales were not paid for and that they were originally purchased under a contract whereby the title continued to reside in plaintiff until full payment of the purchase price was made. The original contract of sale was in writing, but it does not appear to have been acknowledged. However, it was filed in the recorder’s office of St. Francois county, where the property is situate, but was not recorded there.

Defendant put in no evidence whatever, but proceeded at the trial as though it devolved on plaintiff to tender to him, under the statute (section 2890, R. S. 1909), at least seventy-five per cent of the amount paid on the scales before the suit could be maintained. Over the objections and exceptions of plaintiff, defendant was permitted to elicit evidence in cross- examination of plaintiff’s witness, to the effect that no amount of the purchase money theretofore paid on the scales by Pry, the original purchaser, had been tendered by plaintiff to defendant before the suit. This was error, for it is said the statute (section 2890, R. S. 1909) requiring such tender in the case of conditional sales — that is, the tender of the sum paid thereon, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed twenty-five per cent of the amount so paid — does not apply except between the original parties. [See Barnes v. Rawlings, 74 Mo. App. 531.]

The statute (section 2889, R. S. 1909), with respect to conditional sales, provides that such condition that the title shall remain in the vendor until the purchase price is paid shall be void as to all subsequent purchasers in .good faith, unless such condition shall be evidenced by writing, executed, acknowledged, and recorded as provided in cases of mortgages for personal property. Here, it ¡appears, the conditional sale contract was not acknowledged, but it was nevertheless filed,, as mortgages on personal property may be, in the office of the recorder of deeds in the proper county. Whether it is essential to the validity of a chattel mortgage that it shall be acknowledged before a proper officer is unnecessary to decide, for it appears in the instant ease that defendant had actual notice of the facts, even though the filing of the instrument without acknowledgment was not sufficient to impart constructive notice of plaintiff’s claim. The evidence tends to prove that the present defendant, Aubuchon, knew of the conditional sale contract between plaintiff and Fry and that the scales were not paid for; moreover, that he had some arrangement with his immediate vendor, I. W. Miller, to the effect that, in event the scales were taken from him by plaintiff, Miller would compensate the loss. Obviously such actual notice of the transaction was at least equivalent to constructive notice imparted by the proper record and excluded him from the category of-a purchaser in good faith. [See Dieckman v. Young, 87 Mo. App. 530; Kingsland v. Drum, 80 Mo. 646.]

The court seems to have treated with the case as though such actual notice to defendant was unavailing and the matter of his good faith in the purchase depended entirely upon the constructive notice — that is, through the filing of the conditional sale contract in the office of the recorder of deeds; moreover, that such conditional sale contract availed nothing unless acknowledged. Instruction No. 4, given by the court on defendant’s theory of the case, authorizes a finding for defendant unless it appeared from the evidence' that at the time plaintiff had filed for record with the recorder of deeds within and for said St. Francois county the written instrument duly acknowledged, etc., etc. Obviously this instruction was erroneous in view of the fact that the evidence tends to prove defendant possessed actual knowledge concerning the subject-matter.

The judgment should be reversed and the cause remanded. It is so ordered.

Reynolds, P. J., and Allen, J., concur.