Bailey v. Dennis

• Decision Date: 11 January 1909
• Citation: 115 S.W. 506,135 Mo.App. 93
• Parties: C. TOM BAILEY, Appellant, v. JOHN DENNIS et al., Respondents
• Court: Kansas Court of Appeals

115 S.W. 506

135 Mo.App. 93

C. TOM BAILEY, Appellant, v. JOHN DENNIS et al., Respondents

Court of Appeals of Missouri, Kansas City

January 11, 1909

Appeal from Grundy Circuit Court.--Hon. George W. Wanamaker, Judge.

AFFIRMED.

Judgment affirmed.

Hall & Hall and O. G. Williams for appellant.

(1) The trial court erred in refusing appellant's peremptory instructions and in trying the replevin suit or the right of possession of the property in this suit on the replevin bond. The fact that appellant failed to have his damages assessed or judgment for the return of property, as provided by the statutes, did not deprive him of his right of action. Berghoff v. Heckwolf, 26 Mo. 511. (2) The common law action on the bond exists independent of the statutes. Collins v. Hough, 26 Mo. 153; Hansard v Reed, 29 Mo. 472; Smith v. Winston, 10 Mo. 299; Elliott v. Black, 45 Mo. 372; Morrison v Yancey, 23 Mo.App. 670; White v. Houten, 51 Mo. 577 579.

M. Bingham and O. G. Bain & Son for respondent.

(1) The three cows replevied in the original replevin suit, having been afterwards taken and delivered to respondent, Dennis, and said suit having been thereafter dismissed for want of jurisdiction, this case falls within the provisions of section 3924 of the Revised Statutes of 1899, and respondents are now entitled to show their ownership and right of possession in the property involved in the replevin suit in defense to the suit herein on the replevin bond. (2) Where the terms of an auction sale are announced beforehand by the auctioneer and the buyers are notified that the property will be sold on terms of nine months' notes without interest with approved security, such sales are conditional, and said condition must be complied with by the purchaser, or the title to the property will not pass. Mathew v. McElroy, 79 Mo. 202; Tiedeman on Sales, section 206 and cases cited; Oester v. Sitlington, 115 Mo. 255; Cannefelser v. Weigel, 27 Mo. 46; Benjamin on Sales, sec. 334; Ridgeway v. Kennedy, 52 Mo. 24. (3) And where the sale of goods is made with the understanding that the buyer is to pay for same by furnishing notes, which are to be of a certain kind or character, the sale is conditional, notwithstanding the fact that delivery has been made to the buyer and upon default of payment the seller has the right to reclaim his goods by writ of replevin. 1 Benjamin on Sales, p. 341; Harris v. Smith, 3 S. & R. (Pa.) 20; Russel v. Minor, 22 Wend. 659; Tyler v. Freeman, 3 Cush. 261; Wittney v. Eaton, 17 Gray 225; Hirschorn v. Canney, 98 Mass. 149; Seed v. Lord, 66 Maine 580; Hodgson v. Berrett, 33 Ohio State 63. (4) Nor where the terms of the sale are that the goods are transferred for a fixed cash price and delivery has actually been made, no title passes until payment is made, or said payment is waived. Griffin v. Pugh, 44 Mo. 326; Tufts v. Thompson, 22 Mo.App. 564; Strauss v. Hirch, 63 Mo.App. 95; Johnston v. Parrott, 92 Mo.App. 199; Elevens v. Smith, 1 Denio 571; Hemmett v. Linneman, 48 N.Y. 405; Osborn v. Gantz, 60 N.Y. 540; Mason v. Decker, 72 N.Y. 599; Dows v. Kidder, 84 N.Y. 124; Adams v. O'Conner, 100 Mass. 515; Stone v. Perry, 60 Maine 48; Fennelon v. Hoggoboon, 31 Wis. 176; Mathews v. Cowan, 59 Ill. 347; Allen v. Hartifield, 76 Ill. 358; Little v. Page, 44 Mo. 412; Bauchamp v. Archer, 58 Cal. 431. (5) The delivery with the expectation of receiving immediate payment is not absolute, but conditional until payment is made. And where there is no payment, no title vests in the purchaser until the price is paid. Elevator Co. v. Bank, 23 Ohio 319.

OPINION

JOHNSON, J.

Suit on a replevin bond. Verdict and judgment were for defendant and plaintiff appealed. February 24, 1902, Dennis had a public sale of his personal property at his farm in Grundy county. Plaintiff attended and bid off three cows at the price of $ 68, and a quantity of oats at $ 31.05. The terms of the sale announced by the auctioneer permitted purchasers to give their negotiable promissory notes due nine months after date, with security to be approved by a Mr. Wolz, who had agreed to purchase the notes of Dennis and was present at the sale. Plaintiff claimed Dennis owed him an account and desired to have it credited on his purchase. After some discussion, the parties agreed that the amount of the account was $ 5 and that sum was allowed as a credit. Plaintiff paid five cents to reduce the purchase price to even dollars, and a note for $ 94 was made out in accordance with the terms of the sale and given him. He signed it and agreed to have it signed by a solvent surety and then to deliver it to Dennis the next day. He was permitted to drive away the three cows and to take a load of oats. The next day, plaintiff's son came to Dennis for the remaining load of oats, but failed to bring the note. With some hesitation, Dennis permitted him to take the load, but sent back a note to plaintiff urging him to send the promissory note at once. This, plaintiff failed to do and Dennis brought a replevin suit before a justice of the peace and, by giving bond, regained possession of the cows but not of the oats. Plaintiff won that suit in the justice court and Dennis appealed to the circuit court where the action was dismissed on the ground of lack of jurisdiction in the court where it was brought. We affirmed the judgment on appeal (104 Mo.App. 638). Plaintiff then brought suit on the replevin bond to recover the value of the cows and his expenses, etc., in defending the replevin suit. The defense tendered by the answer is that plaintiff is not entitled to recover because at the time the replevin suit was brought, the title and right to possession of the property were in defendant, Dennis, and not in plaintiff. Defendants also filed a counterclaim for $ 37.50, the value of the oats they claim were wrongfully converted by plaintiff.

We think defendants are right in their contention that the dismissal of the replevin suit for want of jurisdiction did not preclude them from meeting the claim of plaintiff that he had been injured and damaged by breach of the...