Peet v. Spencer

Decision Date20 December 1886
Citation2 S.W. 434,90 Mo. 384
PartiesPeet et al., Appellants, v. Spencer, Assignee
CourtMissouri Supreme Court

Appeal from Greene Circuit Court. -- Hon. W. F. Geiger, Judge.

Reversed.

L. P Cunningham for appellants.

(1) Section 2507, Revised Statutes, has no application at all to the facts of this case. Spencer was but an assignee under the state law for the benefit of creditors, made so by the voluntary deed of Fallis & Lichliter, and held the goods in controversy only as such assignee. He stood in the place of Fallis & Lichliter, and had no higher or other right than they would have. State to use Phillips v. Rouse, 49 Mo. 593; Burrill on Assignments [2 Ed.] 484, 538; Frost v. Wilson, 70 Mo. 667; Page v. Gardner, 20 Mo 507; Jordan v. Sharlock, 84 Pa. St. 366; Barnes v. Fisher, 9 Mo.App. 574. (2) This suit stood precisely as if it had been between the original contracting parties. It was the duty of the court trying the case to declare the law correctly, for that is the only manner here of finding whether its decision was proper under the evidence. Where the court sits as a jury the instructions, if any are given, must be given with the same correctness as if the jury were empanelled and trying the facts. De Graw v. Prior, 53 Mo. 313. (3) There was no absolute sale of the goods and the title never passed to Fallis & Lichliter. The plaintiff could maintain replevin. Jones v. Evans, 62 Mo. 375. If the property does not belong to the assignor, it does not pass to the assignee. Clarke v. Bartlett, 50 Wis 547. Under the evidence in behalf of plaintiffs this transaction of placing the goods with Fallis & Lichliter was at most but a consignment for sale, and not a sale; and when Fallis & Lichliter failed and made an assignment, plaintiffs had a right to reclaim their goods, and replevy them if necessary. Section 2507 did not change the law as between these parties. This transaction was a consignment, not a sale. Ardenried v. Betteley, 8 Allen, 302; Walker v. Butterick, 105 Mass. 238; Bayless v. Davis, 47 Ia. 340; Brothers v. Davis, 47 Ia. 363.

No brief for respondent.

OPINION

Black, J.

This was an action of replevin commenced in the circuit court of Jasper county and removed by change of venue to Greene county. The plaintiffs were manufacturers of soap at Kansas City, and on the fourteenth of November, 1880, shipped a car load of soap to the defendant's assignors at Joplin, Missouri. On the sixth of December, 1880, Fallis & Lichliter failed and made a voluntary assignment to the defendant. At the time of the assignment they had nearly all the car load of soap in their store, and the defendant claims the property by virtue of the deed of assignment. There was evidence tending to show that the goods were sold out and out to the assignors, and on the other hand that the plaintiffs refused to sell to them, but only shipped the goods to them to be sold on commission. There was evidence tending to prove all the facts hypothetically stated in the following instruction, asked by the plaintiff, and which the court refused to give:

"1. The court declares the law to be, that if it appears from the evidence that the goods replevied in this suit were part of a car load lot which the plaintiffs shipped to Fallis & Lichliter, and that they were to sell the goods at a certain price to be fixed by the plaintiffs, and that Fallis & Lichliter upon all sales were to receive fifteen or twenty cents a box, according to the size of the box, whether sold by themselves or plaintiffs' agent, O. H. Brown, and that Fallis & Lichliter were to pay over at intervals of from sixty to seventy-five days the proceeds of such sales to plaintiffs, as their agent, Brown, would come around on his trip, and that Fallis & Lichliter were to pay for no goods in said car load lot until after the same had been sold, then the transaction between plaintiffs and Fallis & Lichliter was not a sale of said car load of soap, but was a consignment for sale, and that the title of the goods did not vest in Fallis & Lichliter, and the plaintiffs are entitled to recover."

The defendant makes no appearance here and it is conjectured that he succeeded below by reason of section 2507, Revised Statutes, which is as follows: "In all cases where any personal property shall be sold to any person, to be paid for in whole, or in part, in installments, or shall be leased rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer, or deliverer of the same, until such sum or the value of such property, or any part thereof, shall have been paid, such condition in regard to the title so remaining until such payment, shall be...

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