Summers v. Baker

CAULFIELD, J. (after stating the facts). — The defendant contends, and we think rightly, that the court erred in giving instructions numbered one and four. These instructions would allow plaintiff to recover upon a mere showing that she was the owner of the goods and that defendant converted them to his own use. That is not sufficient in an action for the conversion of personal property. Plaintiff must have shown that she also had the possession or the right to the immediate possession of the goods. [Bank v. Tiger Tail Mill and Land Co., 152 Mo. 145, 157, 53 S. W. 902; Schwald v. Brunjes, 139 Mo. App. 516, 123 S. W. 472.] In the case at bar, the evidence tended to prove that, at the time of the conversion, not only was a chattel mortgage executed by the plaintiff extant, but that the mortgagee had possession of the goods through possessing the warehouse receipt, and was entitled to such possession by reason of plaintiff being in default and having-disposed of part of the mortgaged property without the written consent of the mortgagee. If this evidence is to be believed, plaintiff had neither the possession nor the right to the immediate possession and had no right to maintain trover, unless the loan by the mortgagee was tainted with usury,, in which event the mortgage is null and void under the statute (See. 7184, R. S. 1909), and neither it nor the mortgagee’s possession under it would be a bar to plaintiff’s suing for the conversion. But there was nothing in this case to justify the court in ignoring the mortgage as if the usury had been established as a matter of law. Whether there was usury should have been submitted to the jury under proper instructions. Plaintiff suggests nothing in support of the instructions except that no chattel mortgage was pleaded and thereforé there was no issue “except the. fact of the ownership in plaintiff and the conversion.” This position is clearly untenable. The general denial put in issue the plaintiff’s averment as to her right to [673] possession and anything which tended to disprove that averment might be availed of under the general denial. [21 Enc. of Pl. and Pr., p. 1086; Thomas v. Ramsey, 47 Mo. App. 84.] The judgment is reversed and the cause remanded. Reynolds, P. J., and Nortoni, J., concur.