Drysdale v. Cornerstone Bank

562 S.W.2d 182, 23 U.C.C. Rep. Serv. (West) 1072, 1978 Mo. App. LEXIS 1946
CourtMissouri Court of Appeals
DecidedFebruary 6, 1978
Docket10256
StatusPublished
Cited by19 cases

This text of 562 S.W.2d 182 (Drysdale v. Cornerstone Bank) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drysdale v. Cornerstone Bank, 562 S.W.2d 182, 23 U.C.C. Rep. Serv. (West) 1072, 1978 Mo. App. LEXIS 1946 (Mo. Ct. App. 1978).

Opinion

HOGAN, Judge.

This case presents a question of priority between two creditors secured under Article 9 of the Uniform Commercial Code, codified in this State as §§ 400.9-101—9.-507, RSMo (1969) V.A.M.S. 1 It stands tacitly admitted that priority depends on the order of perfection by filing. Specifically, the question is whether plaintiff or defendant (bank) is entitled to certain items of personalty acquired by the debtor after the bank’s financing statement was filed. The appeal is here upon an agreed statement of fact in lieu of a transcript as authorized by Rule 83.13. Therefore, and contrary to counsel’s assertion that our review is gov *183 erned by Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo.banc 1976), the only question before this court is whether the trial court drew the proper legal conclusions from the facts stipulated. State ex rel. Ciba Pharmaceutical Products, Inc. v. State Tax Commission, 382 S.W.2d 645, 651[1] (Mo.banc 1964); Surface v. Ranger Ins. Co., 526 S.W.2d 44, 45[1] (Mo.App.1975). The trial court has held that the bank has a prior security interest in the property (except livestock) covered by the plaintiff’s security agreement. We affirm.

The agreed facts, summarized as material here, are that on October 27,1970, plaintiff and her husband agreed to sell a business known as Drysdale Ford Sales to Sam McA-dams and his wife (debtor). The business consisted of a retail automobile dealership and garage located in Southwest City, Missouri. Plaintiff agreed to sell the entire business, including all the shop equipment, supplies and stock of merchandise.

The debtor, then in possession of the business, sought and obtained financing from the bank. On October 27, the date of the agreement of sale, the bank filed a financing statement in the county recorder’s office. The financing statement recites: (1) the debtor’s name and address as: Sam S. McAdams, Jr., and Anna Belle McAdams, Southwest City, Missouri, DBA Drysdale Ford Sales; (2) the name of the secured party as: The Corner Stone Bank, Southwest City, Missouri; and (3) that the statement covers collateral described as: “[A]ll contents of Drysdale Ford Sales, Southwest City, Missouri, including all parts, all shop equiptment [sic], all supplies ... all funiture [sic], all tools and all stock of merchandise . . .” The financing statement is signed by McAdams and his wife as debtors and by Darrell Spillars, an officer of the bank, on behalf of the secured party.

On November 6 the debtor executed a note payable to the bank in the amount of $10,337.69. Contemporaneously he executed and signed a security agreement on a printed form. By the terms of the agreement the debtor granted the bank a security interest in collateral described as: “[A]ll contents of Drysdale Ford Sales, Southwest City, Missouri, including but not limited to the following, ... All Shop Equiptment [sic], All Tools, All Supplies, and all Furniture and Equiptment [sic].” The printed form then continues: “. . . together with all additions, accessions and substitutions thereto or therefor and all similar property hereafter acquired, hereinafter called ‘Collateral.’ ” (our emphasis). Plaintiff had knowledge of this security agreement but not of its contents.

On January 16, 1975, the plaintiff made a “personal loan” to the debtor in the amount of $1,200.00. This debt was evidenced by a promissory note. Contemporaneously, the debtor executed a security agreement granting the plaintiff a security interest in eight head of cattle and 26 items of personalty. All the personalty included in plaintiff’s security agreement can fairly be described, in the circumstances, as “equipment” within the meaning of § 400.9-109. Plaintiff’s security agreement was filed with the county recorder in lieu of a financing statement.

Thereafter the debtor defaulted in payment of both notes. The bank attempted to secure possession of all the debtor’s property (except the livestock) by placing its own lock on the accesses to the premises occupied by the debtor’s business. Plaintiff made demand upon the bank for the equipment described in her security agreement. Her demand was refused. This litigation, originally an action in replevin, was thereafter commenced.

With some exceptions not material here, the proper issues for determination on any appeal are those stated in the “points relied on” part of the appellant’s brief; questions not there presented will be considered abandoned. Pruellage v. DeSeaton Corp., 380 S.W.2d 403, 405[3] (Mo.1964); State ex rel. Beeler v. Raytown, 453 S.W.2d 672, 674[2] (Mo.App.1970). With the observation that Missouri is still operating under the 1962 version of the U.C.C., we confine ourselves strictly to the very points briefed. There are two. The first point is that the bank’s financing statement is “insufficient” *184 and further “seriously misleading” within the meaning of § 400.9-402(5) because the collateral is described as the contents of Drysdale Ford Sales and, as stipulated, the debtor did business as McAdams Ford Sales from March 31, 1970, up to the date of default. The appellant phrases her contention thus: “[I]t is appellant’s contention that a financing statement describing property as under the name of one business, to-wit, Drysdale Ford Sales, does not give notice to prospective creditors of any security interest in properties acquired by a business known as McAdams Ford Sales.”

As we understand this argument, the appellant concedes that collateral may be described generically in a financing statement, although she misconceives the basis upon which this rule rests. The sufficiency of the description of collateral in a financing statement may become a judicial question, e. g., as when the description is too abstract or when the creditor is guilty of overreaching. It is the statute itself, however, which provides that a financing statement is sufficient if it “. . . contains a statement indicating the types, or describing the items, of collateral.” (our emphasis). § 400.9-402(1). Here, the bank’s financing statement describes “. . . all shop equiptment [sic] ... all furniture [and] all tools.” This is sufficient, we think, to cover the debtor’s equipment as “equipment” is defined by § 400.9-109(2).

Neither do we understand the appellant to contend that the collateral was physically moved, but if that is her point, it is sufficient to say that a change in the location of collateral does not, under the present law, require refiling or amendment of the financing statement, if the original statement was filed in the proper place. § 400.-9-401(3). The appellant has raised no question concerning the place at which the bank’s financing statement was filed. The appellant does not argue that either Drys-dale Ford Sales or McAdams Ford Sales were corporations.

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Bluebook (online)
562 S.W.2d 182, 23 U.C.C. Rep. Serv. (West) 1072, 1978 Mo. App. LEXIS 1946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drysdale-v-cornerstone-bank-moctapp-1978.