American Metal Company v. Daugherty
| Decision Date | 14 May 1907 |
| Citation | 102 S.W. 538,204 Mo. 71 |
| Parties | AMERICAN METAL COMPANY, Appellant, v. A. A. DAUGHERTY and MINE LaMOTTE LEAD & SMELTING COMPANY |
| Court | Missouri Supreme Court |
Appeal from Madison Circuit Court. -- Hon. R. A. Anthony, Judge.
Affirmed.
E. D Anthony for appellant.
(1) Delivery is not essential to the transfer of title. The intention may be proven by express declaration or be inferred from the circumstances, and particularly where everything is done besides delivery, including payment of the purchase price. Tiedeman on Sales (1 Ed.), secs. 84, 86; Nance v Metcalf, 19 Mo.App. 183. (2) The subject-matter of the sale was individualized by C. F. Stephen, Leathe's agent taking the lead and hauling it to the railroad station for shipment, and was the subject of replevin by plaintiff. It was in transit and to all intents and purposes was delivered. (3) The verbal contract of sale and the memorandum confirming the same operated as a complete transfer of title, and such contracts have been upheld by the courts. Smith v. Shell, 82 Mo. 215; Faulconer v. Samples, 57 Mo.App. 302; Armsby Co. v. Eckerly, 42 Mo.App. 299. (4) The lead in controversy had been manufactured and was in transit at the time defendant interfered, and the title had previously passed to plaintiff. Ober v. Carson's Ex., 62 Mo. 209; Goff v. Belche, 62 Mo. 400; McClelland v. Lead Co., 85 Mo. 636. (5) All of the lead sold had been set apart and was kept separate from any other lead in the warehouse at the station, and was a delivery. Rickey v. Zeppenfeldt, 64 Mo. 277.
Stewart, Eliot, Chaplin & Blayney and John C. Brown for respondents.
(1) Where an action at law is tried by the court sitting as a jury, and no instructions were asked or given, and no exceptions saved to the admission or rejection of evidence, if there is substantial evidence to support the judgment of the court, the action of the trial court will be affirmed. Iron Co. v. Pullis, 42 Mo.App. 206; Bray v. Kremp, 113 Mo. 552; James v. Life Assn., 148 Mo. 15; Rice, Stix & Co. v. McClure & Harper, 74 Mo.App. 383; Gentry v. Templeton, 47 Mo.App. 55. (2) Plaintiff in a replevin suit must prove a general or special property interest in the thing to be replevined and a right to immediate possession. Poe v. Stockton, 39 Mo.App. 550; Broadwater v. Darne, 10 Mo. 277; Gartside v. Nixon, 43 Mo. 138; Wright v. Richmond, 21 Mo.App. 76; McMahill v. Walker, 22 Mo.App. 170; Scott v. Riley, 49 Mo.App. 250; Hinchey v. Koch, 42 Mo.App. 230. (3) A contract to sell chattels which are not specified or designated is purely executory until the chattels are designated or individualized, and the vendee gets no title until this has been done. Ober v. Carson's Ex'r, 62 Mo. 213; England v. Mortland, 3 Mo.App. 490; Freight & Cotton Press Co. v. Stanard, 44 Mo. 83. (4) The title usually vests in the vendee upon delivery to him of the chattels sold; if, however, it be urged that the title vests in the vendee prior to delivery, this cannot be until there has been an appropriation by the vendor of goods to fill the contract. Such appropriation must consist of a setting apart of specific chattels to fill the contract, in such a manner as to show a clear intent on the part of the vendor that the specific chattels shall be used to fill the contract, and in such a way that the vendor cannot later change his mind. Tiedeman on Sales, sec. 89; Ober v. Carson's Ex'r, 62 Mo. 209; Groff v. Belche, 62 Mo. 400; England v. Mortland, 3 Mo.App. 490. (5) If the terms of the contract are that the vendor shall pay the freight or undertake to make the delivery at another point than the place of shipment, then the place of delivery is at the point designated, and no title vests in the vendee until the goods have been delivered to the vendee at the designated point. Benjamin on Sales (7 Am. Ed.), sec. 363; Nicholson v. Golden, 27 Mo.App. 132; Thomas v. Ramsey, 47 Mo.App. 84.
Plaintiff brought this action of replevin against the defendants, for two thousand six hundred pigs of lead weighing about eighty pounds each, of the alleged value of $ 9,360, in the circuit court of Madison county, and obtained possession of the said property and sold the same.
The defendants in their answer admitted possession of the property at the commencement of the suit, but denied all the other allegations of the petition, and for further and special defense, defendants allege that the plaintiff was not the real party in interest, but that the suit was instituted and was being prosecuted under a contract and understanding between one S. H. Leathe and the plaintiff, whereby the property in controversy, or the proceeds thereof, were to be paid or had been paid to the said Leathe. Defendants further answering allege that the personal property described in the petition belonged to the Mine LaMotte Lead & Smelting Company, at the institution of the suit, and is still owned by said company, and that defendant A. A. Daugherty is only interested in said personal property as a stockholder, officer and agent of said last-mentioned company, and that the property at the institution of the suit, and now is, of the market value of twenty thousand dollars, and defendants demanded a return to them of all of said personal property and for all other and proper relief.
For reply, plaintiff contends that the Mine LaMotte Lead & Smelting Company had no title or interest in the property replevined.
The cause was tried without a jury and the circuit court gave judgment for the defendants, and found that the property in controversy, to-wit, 2,598 pigs of lead, had been delivered to the plaintiff under the order of delivery made in the cause and that the market value thereof was $ 8,781.24, and that the same had been sold and disposed of by the plaintiff and was not at the date of the judgment in its possession and thereupon the court adjudged that the defendants recover from plaintiff and its securities C. F. Stephens, S. H. Leathe and E. D. Anthony, $ 8,781.23, the market value of the lead in controversy, and that execution issue therefor. Motions for a new trial and in arrest were filed and overruled and an appeal taken to this court. Objections were filed in due time by the respondents to the abstract of record filed by appellant herein. The objections to this abstract were well taken, but as the respondents, without waiting for the action of this court thereon, supplied the defects in appellant's abstract by a full additional abstract, it will, in our opinion, be more satisfactory to dispose of the cause on the record as it appears from the two abstracts.
1. This is an action at law, and no instructions were requested or given and no exceptions were saved to the admission or rejection of evidence, and in such cases, it has been repeatedly ruled by this court that it will not weigh the evidence and determine whether or not the finding and judgment of the circuit court was correct on the evidence, but if there is substantial evidence to support the judgment of the circuit court, its judgment will be affirmed. [Miller v. Breneke, 83 Mo. 163, and cases cited; Bray v. Kremp, 113 Mo. 552, 21 S.W. 220; James v. Life Association, 148 Mo. l. c. 1, 49 S.W. 978.]
2. The facts as we glean them from the abstracts are these: On the 14th of February, 1903, the plaintiff, the American Metal Company, through its agent, Sol Roos, in the city of St. Louis, purchased of Samuel Leathe eleven thousand pigs of lead at $ 3.97 1/2 cents per hundred pounds, f. o. b., at East St. Louis, less one-half per cent commission spot cash, by verbal sale, and on the next day confirmed the said purchase by a letter in writing. At that time Samuel H. Leathe was the owner of what was known as the "Mine LaMotte" properties in Madison county, Missouri, and on February 18, 1903, Mr. Leathe sold the Mine LaMotte properties to the firm of Daugherty and Albers of New York, but held possession of it under a contract, which provided that until the purchase money for said property had been paid by said Daugherty and Albers, the said Leathe should remain in full possession and carry on the business therewith and therein and receive all income therefrom. On March 6, 1903, the purchase money having all been paid, Leathe surrendered the property to Daugherty and Albers.
On behalf of the plaintiff, C. F. Stephens testified that for six years prior to the 6th of April, 1903, he had lived in Madison county, and was the manager of the Mine LaMotte estate for Samuel H. Leathe, the owner at that time; that witness was present when Mr. Leathe sold the eleven thousand pigs of lead to the American Metal Company, and that under the instructions of Mr. Leathe, witness caused to be delivered to the American Metal Company in East St. Louis eight thousand four hundred pigs of lead as fast as he could obtain cars therefor, and that he had the remaining two thousand six hundred pigs placed in the warehouse of the Mine LaMotte property, and that the reason he had not shipped out this two thousand six hundred pigs was because he was forbidden to do so by Mr. Daugherty; that the warehouse where this lead was stored at Mine LaMotte station, belonged to the Mine LaMotte estate, being part of the property that once belonged to S. H. Leathe, and sold to the Mine LaMotte Lead & Smelting Company; that the transfer of the property between Leathe and Daugherty and Albers was completed on the 6th of March, 1903, and that most of the loading of the eight thousand four hundred pigs was done subsequent to that date; that before the transfer, witness had been shipping some of the lead; that the railroad company was behind with the cars, which witness had ordered in the middle of...
To continue reading
Request your trial