Armour & Co. v. Ross

• Decision Date: 02 October 1907
• Citation: 58 S.E. 941,78 S.C. 294
• Parties: ARMOUR & CO. v. ROSS et al. [*]
• Court: South Carolina Supreme Court

58 S.E. 941

78 S.C. 294

ARMOUR & CO. v. ROSS et al. ^[*]

Supreme Court of South Carolina

October 2, 1907

Appeal from Common Pleas Circuit Court of Cherokee County; C. G Dantzler, Judge.

Action by Armour & Co. against M. L. Ross and others. From a judgment for defendants, plaintiff appeals . Reversed and remanded for new trial.

Woods J., dissenting.

J. C Jefferies, for appellant.

Butler & Osborne, for respondents.

GARY A. J.

This is an action to recover the value of goods alleged to have been converted by the defendants to their own use. This is the second appeal. The first is reported in 75 S.C. 201, 55 S.E. 315. The complaint alleges that at the time hereinafter mentioned the plaintiff was the owner of a quantity of bacon and lard, of the value of $1,353.41; that at said time the property was in possession of defendant St. John Butler, as plaintiff's agent, and was in his hands upon consignment; that on or about the 20th of August, 1901, the defendants, knowing that the plaintiff was owner of said property, and in order to pay an old debt due the defendant St. John Butler to his codefendants, H. L. Ross and W. A. Turner unlawfully and wrongfully converted the same to their own use, and placed it out of the possession of said agent, who thereupon left the state, and that the defendants Ross and Turner detained and concealed said property from the plaintiff for the purpose of appropriating it to their own use. The defendants Ross and Turner in their original answer, upon which they went to trial the first time, denied the allegations of the complaint, and set up as a defense that they were purchasers for valuable consideration without notice. After the case was remanded for a new trial, the defendants amended their answer by alleging, also, that they were subsequent creditors for valuable consideration without notice. At least a part of the indebtedness was contracted about the 8th of June, 1901, at which time the property in question was in the possession of St. John Butler, which was more than two months before he is alleged to have sold the property. The jury rendered a verdict in favor of the defendants, and the plaintiff appealed.

The first assignment of error is because his honor, the presiding judge, ruled that the agreement entered into between the plaintiff and St. John Butler was null and void as to subsequent creditors or purchasers for valuable consideration without notice, as it was not recorded within the time required by section 2655 of the Civil Code of 1902, which is as follows: "Every agreement between the vendor and vendee, bailor or bailee or personal property, whereof the vendor or bailor shall reserve to himself any interest in the same, shall be null and void as to subsequent creditors or purchasers for valuable consideration without notice, unless the same be reduced to writing in the manner now provided by law, for the recording of mortgages; but nothing herein contained shall apply to livery stable keepers, inn keepers, or any other persons letting or hiring property for a temporary use, or depositing such property for the purpose of having repairs or work or labor done thereon." The agreement made between the plaintiff and St. John Butler was in form an instrument of writing, dated the ___ day of June, 1899, directed to St. John Butler, signed by Armour & Co., and containing, among others, the following provisions: "Upon your acceptance in writing indorsed hereon, you are constituted our broker and commission merchant Gaffney, S. C., to sell provisions and products, as we may offer through or consign to you, or to your care for that purpose, upon the following conditions: (1) The title of all goods is to remain in us until sold by you, in accordance with the terms fixed by us, and when sold, the proceeds of sale shall at all times be the property of Armour & Co., and you shall any time deliver any or all unsold goods to whomsoever Armour & Co. may authorize to receive them." St. John Butler accepted the terms of the proposed contract. In 3 Enc. of Law, 733, the word "bailment" is defined as follows: "Bailment is the delivery of goods for some purpose, upon a contract expressed or implied, that after the purpose has been fulfilled they shall be redelivered to the bailor, or otherwise dealt with according to his directions, or kept until he reclaims them." The agreement herein is embraced within this definition. Section 2655, Civ. Code 1902, was construed in the case of Ludden & Bates v. Dusenbury, 27 S.C. 467, 4 S.E. 60, in which there was an agreement stipulating for the hiring of an organ, valued at $95, for the term of nine months, at a monthly rental of $10, with an option to the bailee to buy it at any time within that period at the said valuation, in which case the money paid for the rental should be deducted from the purchase money. The court held that it was not a mortgage, nor a conditional sale, but a contract of hiring only, with an option to buy at a future time, and that the agreement, not having been recorded in the manner provided by said section, was void as to a purchaser of the property at sheriff's sale under a judgment recovered against the bailee by a subsequent creditor for valuable consideration without notice. The court concludes with the following statement of the law: "It will thus be seen that the law as it now stands and as it stood when the agreement here in controversy was made is no longer confined to verbal agreements, but extends to every agreement, and it covers agreements between bailor and bailee, as well as those between vendor and vendee, and that all such agreements must be reduced to writing and recorded like mortgages, in order to make them valid against the claims of subsequent creditors or purchasers for valuable consideration without notice. Inasmuch, therefore, as the agreement here in question was never recorded, and inasmuch as there is no evidence that the defendant, who, as we have seen, must be regarded as a subsequent purchaser, ever had any notice of the agreement, it is quite clear that, even regarding the agreement as a contract, not of sale, but a contract of hiring, which is a bailment, the defendant was entitled to recover." The exceptions raising this question are overruled.

The next error assigned is because his honor, the presiding judge, refused to direct a verdict or grant a new trial, on the ground that there was no testimony whatever tending to sustain the defense that the defendant Ross was a creditor or purchaser for valuable consideration without notice. Upon the former hearing of this case, before the defense was amended by alleging that he was not only a purchaser, but...