American Process Co. v. Florida White Pressed Brick Co.
| Decision Date | 15 December 1908 |
| Citation | 56 Fla. 116,47 So. 942 |
| Parties | AMERICAN PROCESS CO. v. FLORIDA WHITE PRESSED BRICK CO. |
| Court | Florida Supreme Court |
Headnotes Filed December 19, 1908.
Error to Circuit Court, Duval County; Rhydon M. Call, Judge.
Action by the American Process Company against the Florida White Pressed Brick Company. Judgment for defendant, and plaintiff brings error. Affirmed.
Syllabus by the Court
Where the sufficiency of a plea to the merits is not questioned and issue is joined thereon, if such plea is proven without contradiction, it is not error for the court to direct a verdict thereon for the defendant. The proper judgment to be entered upon the verdict is for the determination of the court.
The mere possession of personal property is only prima facie evidence of title; and a purchaser of personal property from one who has only the possession of the property under an incomplete conditional sale cannot in general defeat a recovery by the true owner, although such purchaser bought for value and without notice.
Where property is sold on credit, and the title thereto reserved by the vendor, upon a breach of the conditions of the sale, the vendor may either treat the sale as absolute and sue for the price thereof, or he may treat the sale as canceled and recover the property; but the vendor cannot pursue both courses, and the election to pursue either one of two inconsistent remedies operates in law as an abandonment or waiver of the other.
Whether coexistent remedies are inconsistent is to be determined by a consideration of the relation of the parties with reference to the right sought to be enforced as asserted in the pleadings.
Where machinery is consigned by A. to the order of H., who is engaged in the business of furnishing and installing such machinery in manufacturing plants on the lands of others, and there is nothing to indicate that the title has been reserved by the consignor, who knew the machinery was to be installed for another party and to become permanently affixed to its land, and gave no notice to such party of the reservation of the title, he cannot recover the property from the party for whom it was installed, and who paid value for it without notice of the conditional sale, particularly where, after merely filing a praecipe in the action for conversion, A instituted proceedings for the balance due on the price against the party to whom A. sold the property, and received part payment of the price in such proceedings.
COUNSEL John E. Hartridge, for plaintiff in error.
Bisbee & Bedell, for defendant in error.
Action was begun in the circuit court for Duval county on February 10, 1906, by the American Process Company filing a praecipe for summons against the Florida White Pressed Brick Company. On March 5, 1906, a declaration was filed charging that 'the defendant converted to its own use, or wrongfully deprived the plaintiff of the use and possession of, the plaintiff's goods; that is to say one No. 4,225 direct heat dryer,' etc., of the value of $1,000. Plaintiff claimed $2,000 damages.
One of the pleas of the defendant filed on October 21, 1907, was 'that heretofore, to wit, on the 14th day of February, A. D. 1906, the plaintiff in the District Court of the United States for the Southern District of New York interposed a claim against the bankrupt estate of the H. Huennekes Company for or on account of the purchase price of the identical property mentioned in the declaration, that thereafter on, to wit, the 21st day of March, 1907, the said claim was allowed in whole or in part as a valid claim against said bankrupt estate, and thereafter one or more dividends from said bankrupt estate were paid to and received by the plaintiff on account of said claim, and that the said Huennekes Company installed said property in defendant's plant under contract with defendant.'
Issue was joined on all the pleas filed by the defendant. At the trial the court gave the following instruction: --which was excepted to. The jury returned a verdict of not guilty, and judgment was entered for the defendant. The plaintiff took writ of error and among the errors assigned is the giving of the charge above quoted.
The plaintiff did not question the sufficiency of the plea above set out, but joined issue on it, thereby admitting its sufficiency if proven to be true.
As the plea was proven without contradiction, the charge complained of was not erroneous. See Jones v. Shomaker, 41 Fla 232, 26 So. 191. Even though the charge be correct, the judgment may not be correct if the plea is frivolous. The judgment is not assigned as error, but its correctness with reference to the plea will be considered.
It was agreed 'that the goods mentioned in the declaration were shipped by the plaintiff, American Process Company, about June 23, 1905, from New York, consigned to H. Huennekes Company, care of Florida White Pressed Brick Company, Jacksonville, Fla., by bill of lading, a copy whereof is hereto attached, with instructions to notify Florida White Pressed Brick Company of the arrival of the goods at destination; that said goods were received about July 23, 1905, at Jacksonville, Fla., and defendant Florida White Pressed Brick Company was notified of said arrival by the railroad company, and said goods were installed by Huennekes Company as a part of the brick-making plant then under construction in Duval county, Fla., near Jacksonville, by said Huennekes Company for said Florida White Pressed Brick Company, and were delivered by said H. Huennekes Company to said Florida White Pressed Brick Company as a part of said brick-making plant, and have ever since been and are still in the possession of the said Florida White Pressed Brick Company.'
The bill of lading shows the goods were shipped to the order of H. Huennekes Company. 'C/o Fla. White Pressed Brick Co.' H. Huennekes Company was engaged in the business of supplying and installing such machinery.
The evidence discloses that H. Huennekes Company was adjudged a bankrupt, and that in the bankruptcy proceedings the American Process Company presented its claim against H. Huennekes Company for a balance due 'upon the original agreement' with complainant for the price of the property involved here. Complainant also received dividends on said claim in the bankruptcy matter. There is no evidence that the Florida White Pressed Brick Company was advised of a conditional sale of the property to H. Huennekes Company, who installed it under contract with defendant in its brick plant. The defendant paid H. Huennekes Company for it without knowledge of the terms of the sale by the plaintiff.
The mere possession of personal property is only prima facie evidence of title; and a purchaser of personal property from one who has only the possession of the property under an incomplete conditional sale cannot in general defeat a recovery by the true owner, although such purchaser bought for value and without notice. See Campbell Printing Press & Manuf'g Co. v. Walker, 22 Fla. 412, 1 So. 59; Fairbanks, Morse & Co. v. Eureka Company, 67 Ala. 109; Marvin Safe Co. v. Norton, 48 N. J. Law, 410, 7 A. 418, 57 Am. Rep. 566.
But, where an owner consigns personal property to a dealer in such goods with express or implied authority to sell, or delivers or consigns to another personal property with indicia of ownership, but with title reserved in the owner until the payment of the purchase price, a purchaser who pays value for such goods, and gets possession thereof without notice of the terms or conditions of the original delivery, consignment, or sale, obtains a good title as against the original owner, which will in general prevail against the latter's reserved title. See Bent v. Jerkins, 112 Ala. 485, 20 So. 655; 24 Am. & Eng. Ency. Law (2d Ed.) 1165; 1 Mechem on Sales, §§ 157, 166.
Where one of two innocent parties must suffer through the act or negligence of a third person, the loss should fall upon the one who by his conduct created the circumstances stances which enabled the third party to perpetrate the wrong or cause the loss.
Where property is sold on credit and the title thereto retained by the vendor, upon a breach of the conditions of the sale, the vendor may either treat the sale as absolute and sue for the price thereof, or he may treat the sale as canceled and recover the property; but the vendor cannot pursue both courses, and the election to pursue either one of two inconsistent remedies may in law operate as an abandonment or a waiver of the other. The vendor may elect between inconsistent remedies, but he may not pursue inconsistent remedies for the enforcement of his property rights.
Where an action is brought for the price of all the goods sold, it is a concession that title has passed, and the vendor may not in general also prosecute an action for the recovery of all the same property upon the theory that the title thereto has not passed from him. The facts that the proceeding for the price was begun after the action to...
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