Appeal from the Circuit Court of Pike county; the Hon. A. CLAY
WILLIAMS, Judge, presiding. Affirmed.
JUDGE ROETH DELIVERED THE OPINION OF THE COURT. Rehearing denied November 26, 1956.
Plaintiff-appellant filed suit against defendant-appellee for the alleged wrongful conversion of items of farm equipment, claiming damage in the sum of $3,000. Defendant answered and set up a prior claim to the goods. A trial resulted in a finding that defendant had a prior claim to the goods and judgment was entered for plaintiff in the amount of only $827.32, under a computation hereinafter set out, from which this appeal was perfected.
The facts giving rise to the controversy so far as they bear upon this appeal, are not in dispute. Harrison Motor Company, plaintiff, is a dealer in automobiles and farm machinery in Hannibal, Missouri. On November 12, 1950 one Harry Thomason, who lived at Hull in Pike County, Illinois, purchased from Harrison Motor Company two pieces of farm machinery. He executed at the office of plaintiff in Hannibal, Missouri an instrument denominated a conditional sales installment note which is the usual combination note and conditional sales contract. The note was for $1,713.05 and was payable at the office of Harrison Motor Company in Hannibal, Missouri on December 1, 1951. The machinery is described in the contract and by the terms of the contract, title was retained by Harrison Motor Company. The contract provided that the machinery was to be kept in Hull, Pike County, Illinois. Thereafter the machinery was delivered to the farm of Thomason in Pike County by the plaintiff. Two payments on the note were subsequently made by Thomason, one of $230 on July 9, 1952 and the other of $271.39 on October 9.
On April 11, 1951 Thomason purchased from plaintiff, two additional pieces of farm machinery. The transaction was handled in the same manner as above noted as to the sale on November 12, 1950. The amount of the note was $370 payable November 15, 1951. No payments were ever made on this note.
On July 11, 1951 Thomason purchased from plaintiff two additional items of machinery. This transaction was likewise handled as was the sale of November 12, 1950. The amount of this note was $1,040 payable in equal installments on November 1, 1951 and November 1, 1952. One payment of $520 was made on July 9, 1952.
In their brief counsel for plaintiffs concede that on the face of the contracts appears "The machinery herein described has been received in good order and condition and will be kept in town of Hull, County of Pike and State of Illinois." (Emphasis supplied.)
On the back of each of the conditional sales installment notes there is typed the following:
"State of ____ | > SS County of ____ |
"The within instrument was filed recorded in this office on the ____ day of ____ 19__ and indexed in Book ____ page ____ as No. ____.
______________________________ Signature and Official Title."
The instruments were never recorded so that the certificates are blank.
Thereafter, Thomason became indebted to defendant, a bank at Hull, Illinois, and on December 24, 1952 he executed his note for $2,500 payable to defendant one year after date. At the same time, he executed a chattel mortgage to defendant to secure this note covering the machinery purchased from plaintiff together with other machinery. This chattel mortgage was recorded in Pike County, Illinois on December 26, 1952. On January 5, 1953 Thomason gave the defendant a financial statement, listing among his assets the property covered by the chattel mortgage and listing as his liabilities a $3,100 real estate mortgage, the note to defendant and $600 "due on combine."
The defendant first learned of the conditional sales installment notes held by plaintiff on March 15, 1954. On March 18, 1954 it took possession of the property covered by the chattel mortgage, gave notice of a sale to be held April 13, 1954 and sold the property at public auction on that date.
The amount of the judgment, $827.52 in favor of plaintiff, is based upon the following facts appearing in evidence, to-wit: The gross amount of the sale held April 13, 1954, was $3,753. The property included in the chattel mortgage but not covered by the conditional sales contracts sold for $1,583 and the property covered by the conditional sales contracts sold for $2,170 making a total proceeds of the sale $3,753. There was due defendant on April 13, 1954, as principal and interest on its notes, $2,553.48 and costs of the sale were $177 making a total due defendant on date of sale of $2,730.48 and after applying on that amount the sum of $1,583 realized from sale of property not ...