Holmes v. Strayhorn-Hutton-Evans Commission Co.

SMITH, P. J. This is an action by the plaintiff against the defendant to recover damages for the wrongful taking [100] and conversion by the latter of twenty-six head of two-year-old high graded Hereford heifers, of which the plaintiff was • the owner. There was a trial in the circuit court where plaintiff had judgment, and defendant appealed. During the progress of the trial, the plaintiff offered in evidence the chattel mortgage under which he claimed the ownership of the subject of the conversion, to the introduction of which the defendant objected on the ground that the description therein was, “indefinite and uncertain and did not state the location of the cattle in Jackson county in this state.” The defendant’s objections were overruled. The mortgage recites: “The party of the first part (John D. Duckworth), herebysells to the party of thesecond part (the plaintiff herein), the following described personal property situate in the county of Jackson and state of Missouri, to wit: One hundred head of two-year-old high graded Hereford cattle (heifers), three thoroughbred Short Horn bulls (Hereford), ten registered thoroughbred Short Horn bulls, and forty head of thoroughbred registered cows and calves (thirty-five of them cows and five calves),” etc. It was recited in said mortgage that the party of the first “shall not remove said property from its present location in said county,” and that said property “is now in the possession of said party of the first part at the location above mentioned in said county.” chattbi. mortfufficien?y“?.tlon' A mortgage to be effectual as to third persons must point out the property and so describe it that they, by its aid and the aid of such inquiry as such mortgage suggests may identify the particular property thereby conveyed. Estes v. Springer, 47 Mo. App. 99; Chandler v. West, 37 Mo. App. 632; Hughes v. Menefee, 29 Mo. App. 192. The description in this case is more definite than that in Estes v. Springer, ante, which was held to be sufficient. The description here recites that the property is located in Jackson county, and is in the possession of the mortgagor in that county. In the Estes v. Springer [101] case the description did not in terms recite that the property was “in the possession of the mortgagor in Barton county.” In other respects the description here is similar to that there. It is not required that the mortgage should recite that the cattle therein described were all of like kind owned by the mortgagor in Jackson county. In view of the rulings made by us in the case just referred to, we must conclude that the description in question was sufficient to render 'the mortgage effectual. __. suffic¡enCy of tranlacdonsA'nstructions. The defendant objects that the trial court further erred in its action denying the defendant’s demurrer to the evidence. An examination of the evidence has convinced us that the action of the court was proper. It was provided in the mortgage that any future transactions' by which the mortgagor should become indebted to the mortgagee should be based on the same security and should be so held and construed. This broad and comprehensive provision was ample to authorize the two items of indebtedness amounting to $297.50 to be charged by plaintiff against the mortgaged property. It extended to every transaction of the parties to the mortgage by which the mortgagor became indebted to the mortgagee. By aggregating the items of indebtment as well as those of credit, shown by the evidence, and subtracting the former from the latter, it will be seen that the amount remaining is quite sufficient to bring the case within the jurisdiction of the court. The evidence was sufficient to carry the case to the jury. There was no error committed by refusing defendant’s demurrer to the evidence. Nor was there any impropriety in giving the plaintiff’s instructions. There undoubtedly was evidence adduced sufficient to authorize the giving of the same. [102] - — : trusts and sion: account. [101] Some time after the alleged trespass by defendant the plaintiff sold the thirteen head of cattle remaining for $494' [102] on a credit. The defendant insists that this amount should be deducted from the mortgagor s indebtedness to the plaintiff. Even if this amount were so deducted there would still remain a considerable sum due plaintiff on the mortgage indebtedness. The plaintiff was clothed by the mortgage with a trust. The trust continued as long as any part of the secured indebtedness was not discharged. If anyone made way with the trust property it was his duty to sue for and recover indemnity for the damage. As to the exact status of the account between the mortgagee and mortgagor we are not concerned in this action further than to ascertain whether or not the relation of mortgagee and mortgagor was in existence at the time of the trespass. If the plaintiff’s debt has not been in some way extinguished, and the relation of mortgagee- and mortgagor ended, then his right of action can not be called in question. If any part of the mortgagee’s debt was unpaid • it can not be disputed that it was past due. _._. titie to the property. It is the well settled law of this state that where personal property is mortgaged or conveyed by deed of trust to secure-the payment of a debt, the mortgagee or trustee-becomes thereby invested with the absolute-(¿tig or owners]1jp 0f thg pr0perty after the day of payment has passed. Robinson v. Campbell, 8 Mo. 365; Dean v. Davis, 12 Mo. 112; Lacey v. Giboney, 36 Mo. 320; Pace v. Pierce, 49 Mo. 393; Bowens v. Benson, 57 Mo. 26; The State ex rel. v. Adams, 76 Mo. 605. It follows therefore that the plaintiff was the rightful' 'owner of the property and entitled to sue and recover the-damages for the defendant’s wrongful act. No error prejudicial to the defendant is perceived in the action of the court either in giving or refusing instructions. The instructions in their entirety we think were far more favorable to defendant, than it was entitled to. [103] „ . new trial: supple-coveredvIevi-is’ dence. The defendant within four days after the verdict filed its motion for a new trial. After the expiration of the four days it filed an amended motion introducing as an additional ground to those stated in the original motion that of newly discovered evidence. It has been held by the supreme court that a motion for a new trial can not be amended after the expiration of the time by inserting therein new and additional grounds. State v. Brooks, 92 Mo. loc. cit. 591; State v. Dusenberry, 112 Mo. loc. cit. 295. The law may be as intimated in the opinion of the majority in Bank v. Porter, 65 Mo. App. 448, that such motion is amendable, where the failure to insert the additional ground therein, when filed, is properly accounted for. The defendant, it is conceded by the affidavits accompanying the supplemental motion, knew at the time of filing the original motion •every fact that he knew at the time of filing the supplement. No fact is stated in the supplement that was not known to the •defendant and could not have been stated by it in the original motion. The defendant in no way accounts for its failure in this regard. This ground for the new trial was not therefore •called to the attention of the court by motion filed within the dime required by statute and therefore can not be considered by us. , —_: —. newiy discovered evi* dence: waiver, If the defendant did not know of the whereabouts of Carnahan or the facts to which he could testify until the day of the trial, yet if it learned the same before the trial was commenced, as seems to have been the case, it was its duty to have applied to the court' for a continuance; but if, instead of doing that, it chose to proceed to trial, as it did, it was in no situation after the verdict against it to claim a new trial of the cause on the ground of newly discovered evidence. It can not be allowed in- that way to speculate on the result of the 'trial. . [104] “We are unable to discover that there was any abuse by the trial court of its discretion in denying the motion for a new trial. The judgment will be affirmed. All concur.