Kolkmeyer v. J. S. Merrell Drug Co.

CAULFIELD, J. (after stating the facts).-We confine this opinion, as plaintiff’s counsel has limited his argument, to a consideration of the controversy as it may affect the stock of drugs, etc., alone. Defendant exercised no control or dominion' over the fixtures and soda fountain. Plaintiff urges that “the court erred in giving judgment for the defendant.” Clearly this assignment cannot be sustained if plaintiff’ failed to prove his case in some essential particular. Now plaintiff brought this action to recover for the conversion of the stock on hand when the mortgage was given. That is all his mortgage covered and all his petition claimed. The conversion is alleged to have occurred some fourteen months after the mortgage was given. In the meantime, with plaintiff’s consent, Barrett had sold freely from the mortgaged stock in the usual course of business, and had purchased and mingled with it a large quantity of new but similar stock and sold and resold from the confused mass, without any attempt [10] to keep “the mortgaged stock separated or distinguished from the after-acquired stock or to keep account of how much was sold of either. Not the slightest attempt was made at the trial to identify any of the goods that remained, as having been on hand when the mortgage was given; nor was any evidence furnished from which inferences might properly be drawn as to what portion of the stock covered by plaintiff’s mortgage the defendant took over. There was nothing on which the trier of the fact might have based the amount of a finding for the plaintiff.. This was fatal to plaintiff’s case. The confusion of goods having resulted from the selling and replenishing which he, as mortgagee, knowingly permitted, the burden was on him to show the goods embraced by the mortgage lien, which were taken over by the defendant (Rosenberry & Nathan v. Thompson, etc., 10 Ky. Law Reporter [Ky. Ct. of App. 1888] 332, 8 S. W. 895), or at least to furnish to the trier of the facts evidence from which it was authorized to draw inferences as to what proportion of the stock remaining and taken over by the defendant was on hand when the mortgage to plaintiff was given, and what the value of such proportion was. [Schmidt v. Rankin, 193 Mo. 254, 271, 91 S. W. 78.] In other words, the plaintiff not being entitled to recover the value of all the property remaining, irrespective of whether it was covered by the mortgage to him, must at least furnish some definite evidence by which the trier of the facts might fix the amount of its finding for the plaintiff, if any. That important question was not to be settled by mere guessing. Plaintiff claims, however, that by the verbal agreement with Barrett, his mortgage was extended so as to cover after-acquired property, and therefore covered the confused mass as an entirety at the time of the alleged conversion; that as defendant’s mortgage recited that it was' subject to plaintiff’s mortgage it covered only the mortgagor Barrett’s equity, whatever that might be. [11] Aside from the fact that plaintiff in his petition did not plead such extension of the mortgage or seek to recove* for the conversion of after-acquired property,'the defendant had no knowledge or notice of the verbal agreement with Barrett, but did have actual knowledge of plaintiff’s mortgage as it was recorded. The evidence convinces us that it was plaintiff’s mortgage as it was recorded which was referred to in the mortgage to defendant, and none other. The defendant was not bound by any lien, or by any extension of a lien, of which it had no notice, actual or constructive. [Jones, Chattel Mortgages, Sec. 493.] Plaintiff further contends that because defendant’s mortgage, the letter to plaintiff, and the notice of sale, mentioned that defendant’s mortgage on the stock, fixtures and soda fountain was subject to plaintiff’s mortgage thereon, defendant was estopped from denying the validity of plaintiff’s mortgage on all or any part of the stock after the sale. This contention cannot avail plaintiff. In making it he necessarily assumes that he has a right under the pleadings to recover for the conversion of after-acquired property. There is no room for that assumption. His petition states only that he was entitled to the possession of the stock which was on hand when the mortgage to him was given and alleges the conversion of that alone. Whether defendant converted after acquired property, was not in issue. Then, too, estoppel has no place in the case because plaintiff did not plead it in his petition. [Keeny v. McVoy, 206 Mo. 42, 59,103 S. W. 946; Turner v. Edmonston, 210 Mo. 411, 428, 109 S. W. 33.] In this connection plaintiff complains that the fact that his mortgage did not cover after-acquired property and that plaintiff knowingly permitted defendant’s after-acquired goods to become mingled with those covered by his mortgage was a matter of affirmative defense which could not be availed of by the defendant without being affirmatively pleaded. This is [12] clearly untenable. Defendant’s general denial put in issue the plaintiff’s necessary ayerment as to Ms right to the immediate possession of the property charged to have been converted, and anything which tended to disprove that averment might be availed of under the general denial. [Summers v. Baker, 158 Mo. App. 166, 139 S. W. 226.] The facts just mentioned had that tendency. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.