Chapman v. Kerr

• Decision Date: 31 October 1883
• Citation: 80 Mo. 158
• Parties: CHAPMAN et al., Appellants, v. KERR.
• Court: Missouri Supreme Court

80 Mo. 158

CHAPMAN et al., Appellants,

v.KERR.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

REVERSED.

Bryant, Holmes & Waddill for appellants.

Botsford & Williams and Scarritt & Scarritt for respondents.

HENRY, J.

This is an action of replevin, instituted in the law and equity court of Jackson county by plaintiffs against defendants, to recover personal property, consisting of lamp chimneys, lamps, globes, etc. Plaintiffs were wholesale queensware merchants at Chicago, in November, 1878, and Kerr & Clark then commenced business in Kansas City as retailers of queensware, and also did an auction business. This firm continued under the name of Clark & Kerr until March, 1879, when Clark went out of the firm, and Kerr continued the business until July 27th, 1879, when he made an assignment to Watts for the benefit of creditors. The principal question for the jury to determine, was whether the goods in question were sold to Clark & Kerr, and Kerr after the dissolution of the firm, or were consigned to them for sale on plaintiffs' account.

The goods, with the exception of one shipment, were all ordered by Kerr from time to time, as he desired. The only goods received from plaintiffs on verbal order, was the first shipment which Kerr ordered in person at plaintiffs' house in Chicago. Shipments extended from November, 1878, to July, 1879. In shipping the goods, plaintiffs sent Kerr a bill of the goods sold; and the bill in each instance, was in the form of an ordinary merchant's bill of sale of parcels, and recited that Clark & Kerr, and, after the dissolution of that firm, B. B. Kerr, bought of Chapman, Grier & Co., the plaintiffs, the items of goods described in the bill, and opposite each item plaintiffs set out the price at which the goods were sold, which was the same price at which plaintiffs sold the same class of goods to others. In quite a number of the bills sent to Kerr, the following statement was added: “Terms sixty days, or three per cent off for cash, if remitted in ten days from date of invoice.” When plaintiffs sold Kerr these goods, they entered an itemized account of the goods sold in their ledger, and charged Kerr with the full amount, as in the bills rendered to him. These accounts were kept in the same book, and in the same manner, as accounts of goods sold to other purchasers, and were ordinary debtor and creditor accounts. No directions were given by plaintiffs to either Clark & Kerr, or Kerr, to keep the goods separate and distinct from the other goods of Clark & Kerr, nor were they so kept, nor did they give to Clark & Kerr, or either, directions to keep an account of the goods, on the basis of consignment. There was no agreement as to the price for which Clark & Kerr, or Kerr, should sell the goods, or as to commissions they should receive on sales. Plaintiffs at no time before the dissolution of the firm of Clark & Kerr, requested a statement of account from that firm, nor was any ever made to them either by the old firm or Kerr, and, from time to time, Kerr gave plaintiffs notes and made payments, which were credited by plaintiffs generally on the account in plaintiffs' books.

The evidence for plaintiffs tended to prove that the goods were not sold to Clark & Kerr, or Kerr, but were consigned to them by plaintiffs for sale, under an agreement made with Kerr, when the first shipment was made. The court instructed the jury, at plaintiffs' instance, that “if the goods in controversy were shipped by plaintiffs to Clark & Kerr, or Kerr, their successor, as consignees, the verdict should be for plaintiffs.” And refused one asked by plaintiffs to the effect that “if the goods were shipped by plaintiffs under an agreement between the parties that they should be consigned to Clark & Kerr, to be sold for plaintiffs, the verdict should be for plaintiffs,” notwithstanding said goods were billed to the consignees on the ordinary bill-heads used by plaintiffs in case of goods sold and delivered, and notwithstanding Clark was never informed that said goods were not sold to Clark & Kerr.

1. SALE OR CONSIGNMENT? evidence.

By defendants' instruction number two, it was conceded that the bills of shipments were not conclusive evidence of a sale of the goods, but that it was competent for plaintiffs to show that, notwithstanding the delivery of these bills, the goods were really consigned to the consignees, as bailees and not as purchasers, and that is substantially what was declared by plaintiffs' refused instruction. Appellant complains that the court, in that instruction for defendants, declared that the bills of goods accompanying the shipment, “were presumptive evidence that the goods were sold.” The court did not declare that the law presumed a sale, but it was in effect a declaration that the jury might find, from the character of these bills, nothing appearing to the contrary, that the goods were sold to Clark & Kerr. Those bills were memorandums of sales, and it is going far enough to hold, as the court did in instructions given at defendants' instance, that it might be shown notwithstanding the delivery of those bills, that the goods were not sold, but consigned to be sold by consignees for plaintiffs. Nor was the instruction too emphatic in its declaration, that the evidence contradictory of those bills, to authorize a jury to find a consignment instead of a sale, should clearly preponderate.

2. _____:_____.

That portion of the instruction is objectionable which declares that the jury should find, in order to overcome the presumptive evidence furnished by the bills of the goods, that they were delivered on consignment and were received and accepted on consignment, and not otherwise. If by the agreement they were not sold but consigned for sale, the consignees could not invest themselves with title by receiving them as purchasers, unless by some subsequent act it could be inferred that the consignors agreed that the consignees should hold as purchasers. There was evidence tending to prove that the goods were not sold by plaint...