W. W. Kimball Co. v. Deaton

Missouri Court of Appeals

W. W. Kimball Co. v. Deaton

74 S.W. 427, 102 Mo. App. 45, 1903 Mo. App. LEXIS 548

CourtMissouri Court of Appeals

DecidedMay 12, 1903

StatusPublished

Cited by1 cases

This text of 74 S.W. 427 (W. W. Kimball Co. v. Deaton) 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

W. W. Kimball Co. v. Deaton, 74 S.W. 427, 102 Mo. App. 45, 1903 Mo. App. LEXIS 548 (Mo. Ct. App. 1903).

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Opinion

BLAND, P. J.

This suit is in replevin to recover the possession of one Kimball piano. The facts are that on August 2,1899, plaintiff sold to defendant, Mrs. Amanda Townes, the piano in question at an agreed price of $250. Mrs. Townes paid part of the purchase price and gave her twenty-two promissory notes for the balance, twenty-one of which were for $7 each, the other for $10. One of the seven-dollar notes fell due on the first day of every one of the succeeding twenty-one months. The ten-dollar note became due May 1, 1901. To secure the notes Mrs. Townes gave a chattel mortgage on the piano. The mortgage was not acknowledged, but her signature thereto was attested by two witnesses and the mortgage duly filed for record. Ten of the seven-dollar notes first falling due were paid, but no other payments were made. Plaintiff claimed right of possession of the piano under the chattel mortgage. When the suit was brought defendant, J. R. Deaton, was in. possession of the piano as bailee for Mrs. Townes.

The answers of both defendants set up practically the same defense, to-wit, that the sale was a conditional one, it being understood by both the buyer, Mrs. Townes, and the agent of plaintiff, G. A. Gamer, by whom the sale was made, that the title to the piano should remain in plaintiff until paid for and that both Mrs. Townes and the agent who made the sale understood that the instrument (the chattel mortgage) signed by Mrs. Townes so expressed the contract and that neither party understood it to be a chattel mortgage, and that the instrument was made in the form of a chattel mortgage by the mutual mistake of both parties.

In respect to the transaction, Mrs. Townes testified, in substance, as follows: That she bought the piano on the installment plan, had paid the $50 cash, [48]*48and the first ten installments; that at the time of .the sale Garner ga.ve her a paper to sign, stating it was a contract to show that the piano was to belong to the company until all the notes were paid. That it was agreed and understood between her and Garner at the time, that the title to the piano was to remain in the company until all the installments were paid, and that the chattel mortgage taken was regarded by both as expressive of such contract. That Garner did not inform her that the paper was a chattel mortgage, but did say it was simply a contract, as before stated; that she believed it to be such contract and signed it without reading it but took Garner’s word for the character of the instrument and relied upon him and believed it to be a simple contract, because Garner had told her so.

G. A. Garner, the agent, testified that he told Mrs. Townes that she would be required to give a claim on the piano for the pay; that she asked about the security and that he told her the instrument stood good for the pay and was her property when she paid for it, otherwise it would be the Kimball Company’s property; that he did not tell her the instrument was a mortgage; that she did not ask to read it herself and he did not read it to her and she offered no objection to signing it; that she asked him what it was and he told her it held the goods for the pay and that she must sign it, and there must be witnesses: “She asked me what it was; I told her it was security that she pay for the goods.” That he knew it was a mortgage but that it was distinctly agreed between both parties that the piano was to remain the property of the Kimball Company until paid for and that the instrument of writing bound her to pay for the property; that Mrs. Townes asked if it was a chattel mortgage and he told her, “Yes, it is a chattel mortgage,” but that the title to the piano was not in terms mentioned; that his understanding was and always had been that the title to a piece of property, [49]*49mortgaged for the purchase price, was not transferred from the original owner, and he left the impression on the mind of Mrs. Townes that she was not the owner of the piano and would not be until she had paid for it, and that the giving of the chattel mortgage did not have the effect to pass the title to her.

On this evidence the court, to whom the issues were submitted, found for defendants. Plaintiff appealed.

The appellant, who has failed to furnish any abstract whatever of the evidence and for whose neglect in this respect his appeal might be dismissed, and would be, but for the fact that' respondent has printed a brief abstract of the evidence (sec. 863, R. S. 1899, rule 15 of this court) contends that the answer converted the case into- one of equitable jurisdiction and the court’s judgment is not responsive to the issues made by the pleadings; that the court should, as a prerequisite to the judgment it rendered, have set aside or reformed the chattel mortgage. Be it granted, it does not then follow that the judgment should be reversed, but that it should be corrected here, if the evidence sustains defendant’s theory of the case.

The evidence shows that Mrs. Townes did not read the chattel mortgage. She did not ask Garner to read it to her. She testified, and her conduct and the evidence of Garner corroborates her testimony, that she relied upon and trusted Gamer to prepare a written contract that would express the understanding of both parties, to-wit, that the sale was a conditional one, the title to remain in the Kimball Company until the piano should be paid for. The chattel mortgage, according to the evidence of both Garner and Mrs. Townes, does not express the contract as made. Mrs. Townes was ignorant of its contents when she signed it. Gamer was mistaken as to its legal effect. It does not express the contract as he understood it and as he intended it should be expressed. It is, therefore, not the contract [50]*50of the parties, and for this reason should be cancelled. It is therefore considered and adjudged that the chattel mortgage be for naught held, be set aside and can-celled and that with this modification the judgment of the circuit court be affirmed. It is so ordered.

Reyburn and Goode, JJ., concur.

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BLAND, P. J.

This suit is in replevin to recover the possession of one Kimball piano. The facts are that on August 2,1899, plaintiff sold to defendant, Mrs. Amanda Townes, the piano in question at an agreed price of $250. Mrs. Townes paid part of the purchase price and gave her twenty-two promissory notes for the balance, twenty-one of which were for $7 each, the other for $10. One of the seven-dollar notes fell due on the first day of every one of the succeeding twenty-one months. The ten-dollar note became due May 1, 1901. To secure the notes Mrs. Townes gave a chattel mortgage on the piano. The mortgage was not acknowledged, but her signature thereto was attested by two witnesses and the mortgage duly filed for record. Ten of the seven-dollar notes first falling due were paid, but no other payments were made. Plaintiff claimed right of possession of the piano under the chattel mortgage. When the suit was brought defendant, J. R. Deaton, was in. possession of the piano as bailee for Mrs. Townes.

The answers of both defendants set up practically the same defense, to-wit, that the sale was a conditional one, it being understood by both the buyer, Mrs. Townes, and the agent of plaintiff, G. A. Gamer, by whom the sale was made, that the title to the piano should remain in plaintiff until paid for and that both Mrs. Townes and the agent who made the sale understood that the instrument (the chattel mortgage) signed by Mrs. Townes so expressed the contract and that neither party understood it to be a chattel mortgage, and that the instrument was made in the form of a chattel mortgage by the mutual mistake of both parties.

In respect to the transaction, Mrs. Townes testified, in substance, as follows: That she bought the piano on the installment plan, had paid the $50 cash, [48]*48and the first ten installments; that at the time of .the sale Garner ga.ve her a paper to sign, stating it was a contract to show that the piano was to belong to the company until all the notes were paid. That it was agreed and understood between her and Garner at the time, that the title to the piano was to remain in the company until all the installments were paid, and that the chattel mortgage taken was regarded by both as expressive of such contract. That Garner did not inform her that the paper was a chattel mortgage, but did say it was simply a contract, as before stated; that she believed it to be such contract and signed it without reading it but took Garner’s word for the character of the instrument and relied upon him and believed it to be a simple contract, because Garner had told her so.

G. A. Garner, the agent, testified that he told Mrs. Townes that she would be required to give a claim on the piano for the pay; that she asked about the security and that he told her the instrument stood good for the pay and was her property when she paid for it, otherwise it would be the Kimball Company’s property; that he did not tell her the instrument was a mortgage; that she did not ask to read it herself and he did not read it to her and she offered no objection to signing it; that she asked him what it was and he told her it held the goods for the pay and that she must sign it, and there must be witnesses: “She asked me what it was; I told her it was security that she pay for the goods.” That he knew it was a mortgage but that it was distinctly agreed between both parties that the piano was to remain the property of the Kimball Company until paid for and that the instrument of writing bound her to pay for the property; that Mrs. Townes asked if it was a chattel mortgage and he told her, “Yes, it is a chattel mortgage,” but that the title to the piano was not in terms mentioned; that his understanding was and always had been that the title to a piece of property, [49]*49mortgaged for the purchase price, was not transferred from the original owner, and he left the impression on the mind of Mrs. Townes that she was not the owner of the piano and would not be until she had paid for it, and that the giving of the chattel mortgage did not have the effect to pass the title to her.

On this evidence the court, to whom the issues were submitted, found for defendants. Plaintiff appealed.

The appellant, who has failed to furnish any abstract whatever of the evidence and for whose neglect in this respect his appeal might be dismissed, and would be, but for the fact that' respondent has printed a brief abstract of the evidence (sec. 863, R. S. 1899, rule 15 of this court) contends that the answer converted the case into- one of equitable jurisdiction and the court’s judgment is not responsive to the issues made by the pleadings; that the court should, as a prerequisite to the judgment it rendered, have set aside or reformed the chattel mortgage. Be it granted, it does not then follow that the judgment should be reversed, but that it should be corrected here, if the evidence sustains defendant’s theory of the case.

The evidence shows that Mrs. Townes did not read the chattel mortgage. She did not ask Garner to read it to her. She testified, and her conduct and the evidence of Garner corroborates her testimony, that she relied upon and trusted Gamer to prepare a written contract that would express the understanding of both parties, to-wit, that the sale was a conditional one, the title to remain in the Kimball Company until the piano should be paid for. The chattel mortgage, according to the evidence of both Garner and Mrs. Townes, does not express the contract as made. Mrs. Townes was ignorant of its contents when she signed it. Gamer was mistaken as to its legal effect. It does not express the contract as he understood it and as he intended it should be expressed. It is, therefore, not the contract [50]*50of the parties, and for this reason should be cancelled. It is therefore considered and adjudged that the chattel mortgage be for naught held, be set aside and can-celled and that with this modification the judgment of the circuit court be affirmed. It is so ordered.

Reyburn and Goode, JJ., concur.

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74 S.W. 427, 102 Mo. App. 45, 1903 Mo. App. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/w-w-kimball-co-v-deaton-moctapp-1903.

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