Ernest Wolff Manufacturing Co. v. Battreal Shoe Co.

Decision Date04 October 1915
Citation180 S.W. 396,192 Mo.App. 113
PartiesERNEST WOLFF MANUFACTURING COMPANY, a Corporation, Appellant, v. BATTREAL SHOE COMPANY, a Corporation, and J. F. MEADE, Respondents
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

AFFIRMED.

George W. Groves, New, Miller, Camack & Winger, Krauthoff McClintock & Quant for respondents.

Ringolsky & Friedman, Eugene Batavia and H. L. Jacobs for appellant.

OPINION

JOHNSON, J.

--This is an action to recover damages for the alleged wrongful conversion of certain merchandise taken from the possession of plaintiff under levy of a writ of attachment issued in aid of an action brought by defendant Battreal Shoe Company against George L. Keller. The petition alleges that on the date of the levy, January 1, 1912, plaintiff "was the owner of and in possession of the goods (describing them) of the value of $ 1100," and that as such owner "it shipped same from Orrick, Missouri, to itself in Kansas City, Missouri, in care of the Wells-Fargo Express Company on January 1, 1912, and that on the arrival of the aforesaid merchandise the said defendants wrongfully and unlawfully took the aforesaid merchandise from this plaintiff and converted the same to their own use." The defendants were the Battreal Shoe Company, the attachment creditor of Keller and J. F. Meade, the surety on the attachment bond. The answer of Meade was a general denial that of the Shoe Company, in addition to a general denial pleaded defenses, the nature of which will be disclosed in our statement and discussion of the case. At the conclusion of the evidence plaintiff took an involuntary nonsuit as to Meade and the action proceeded against the remaining defendant and resulted in a verdict and judgment in its favor. Plaintiff appealed.

Keller, who lived in Richmond, Ray county, embarked in the business of retail merchant in Missouri City, in that county, in October, 1911, and in the following December, removed the business to the nearby town of Orrick. He bought the major part of his opening stock from plaintiff, a wholesale dealer in Kansas City in clothing and men's furnishing goods, and made smaller purchases of boots and shoes and other goods from other jobbers. His business career was short-lived and most disastrous, due largely to serious illness in his family which kept him from attending to business and exhausted his resources. His initial purchases from plaintiff amounted to more than $ 900. He paid $ 200 when he ordered the goods and agreed to send weekly remittances on account of the remainder. Subsequent purchases increased the debt to $ 993 and he owed this sum to plaintiff at the time of his failure, which may be said to have occurred on Sunday, December 31, 1911. He also owed about $ 500 to the defendant Battreal Shoe Company for boots and shoes and a smaller amount to another jobber, the Webb Freyschlag Company. His assets had been reduced to the stock of goods in his store which the evidence shows was worth not less than $ 750, nor more than $ 1100, or $ 1200, and consisted in part of goods purchased from plaintiff and in part of goods, fixtures, etc., purchased from other wholesale merchants, including defendant. Plaintiff became uneasy over the unsatisfactory condition of its account and a day or two before Christmas, 1911, its president, Ernest Wolff went to Orrick and finding Keller was at his home in Richmond, proceeded there, but was unable to obtain an interview with Keller who was at the bedside of his dying child. Wolff testified, "I came back home and made up my mind that I would get my money from Mr. Keller or else I would replevin my merchandise, because I wanted to get through with the account, I had no time to fool with it."

Following this unsuccessful trip, Mr. Black, a lawyer of Richmond, who had been retained by Keller, visited plaintiff's office in Kansas City on personal business with its bookkeeper, Mr. Taylor, who had been his warm personal friend for many years, and during the conversation with Mr. Taylor was informed of plaintiff's anxiety over the state of Keller's account and of its purpose to place it in Black's hands for collection. Wolff, who was drawn into the conversation, testified: "The sum and substance of the conversation we had was that he thought that he could help us to get the money from Mr. Keller, or else the goods and in the conversation he let it appear that he was Mr. Keller's attorney." Several days afterwards, Taylor telephoned Black who had returned to Richmond and after a short conversation was succeeded at the telephone by Wolff who, according to his testimony, inquired if Black had spoken to Keller about the subject of his former conversation. Black answered that he had, that Keller was then in the room with him, and had authorized him to tell Wolff to go to Orrick and take all the goods in the store if he would accept them in full discharge of the account. "There are just about enough goods left there to cover your claim," Black is quoted as saying, "maybe not quite enough, and if you are willing to give Mr. Keller a receipt in full for the account, you go over and take those goods, provided if they are short you will receipt just the same in full." The testimony of Taylor who was introduced as a witness by plaintiff differs materially from that of Wolff. He states that at an interview between Black and Wolff and Taylor, Black asked Wolff, "If I will get your goods back will you be satisfied?" and Wolff answered, "Yes, I would like to have the money or the goods back--either one will be satisfactory." Taylor, a day or two later telephoned Black at Richmond and was told that "Keller was willing for Mr. Wolff to go there and get the amount of his goods." Taylor then called Wolff to the telephone and he continued the conversation. Black testified: "My first conversation was with Mr. Taylor with reference to his affairs, and then I talked to Mr. Wolff. And I told him Keller's family was sick, three of his children were sick, and his wife was sick, and I thought it was very doubtful if she or the children lived. One of them afterwards died. And that he couldn't attend to his business there like it should be attended to. And that Keller represented to me that he had a sufficient amount of goods to pay his creditors, and that his idea was to give back to these creditors whatever goods he had on hand which he had purchased from each particular creditor, and at his request I had come to Kansas City to see Mr. Wolff about making him a proposition to take back whatever goods Keller had purchased from him, in payment of Wolff's bill. . . . I think I told Mr. Wolff that Mr. Keller owed the Battreal Shoe Company five or six hundred dollars, something over $ 300, and other bills. I don't know that I gave him a list of each creditor and the amount due each one. I don't think I had the list with me. . . . He (Wolff) said he was willing to take them back. I told him I would go home that night, and I would have Mr. Keller 'phone to his clerk at Orrick to give Mr. Wolff permission to come in the store and take out of the store whatever goods Mr. Wolff found there which he had sold to Mr. Keller."

Keller states, in substance, that it was his idea to allow each of his mercantile creditors to take the goods belonging to him in satisfaction of his claim, that he so instructed his attorney Black, and being informed by the latter that he had made that kind of arrangement with plaintiff, telephoned his clerk in charge of the store to allow Wolff to take only such goods as he had bought of plaintiff. Of the instructions he received, Moore, the clerk, testified: "Mr. Keller told me that Mr. Wolff would be there either that day or the following day to get some goods that belonged to him or that Mr. Wolff had sold to Mr. Keller. And he says, give him what goods he sold me and none other and be sure he don't get anything else."

Wolff and an assistant went to Orrick the next day, which was Sunday, December 31, 1911, arriving there early in the afternoon. Moore met them at the station, accompanied them to the store and after they entered, informed Wolff: "Mr. Keller advised me you have some stuff in here that you have sold him." Wolff replied: "All right, we will go and get it." He had brought a number of trunks and cases with him and had them hauled to the store and he and his assistant began removing all the goods in the store and packing them in the trunks. Moore protested but Wolff declared his purpose to "take everything in sight," observing "possession is nine points in the law." Moore then went out and telephoned Black at Richmond for instructions, after which he returned to the store with the town marshal who concluded he had no authority to stop Wolff "unless I had papers or something of that kind." Wolff admits that Moore protested against the removal of any goods but those Wolff had sold to Keller, but states he thought Moore was joking. He took everything from the store except the stove, which was hot, packed the merchandise in the trunks and expressed them to Kansas City on the first passenger train.

Attorneys at Kansas City for the Battreal Shoe Company, learning of what was occurring at Orrick, brought suit on January 1, 1912 (a legal holiday) in the circuit court of Jackson county against Keller and procured the issuance of a writ of attachment in aid of the suit. The grounds of attachment stated in the affidavit were that Keller had fraudulently conveyed, concealed and removed his property or was about fraudulently to convey, conceal or remove it, so as to hinder and delay his creditors. The writ was levied on the goods as soon as the trunks arrived in Kansas City. The next day the Battreal Shoe Company, as...

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