Boyer v. Leidigh & Havens Lumber Co.
| Decision Date | 01 March 1915 |
| Parties | L. T. BOYER, Appellant, v. LEIDIGH-HAVENS LUMBER COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. D. E. Bird, Judge.
AFFIRMED.
Judgment affirmed.
Frank G. Warren for appellant.
(1) The statute of frauds has no application in this case. (a) Because its benefits cannot be claimed by one who is not a party to the contract and is not sought to be charged thereby. Railroad v. Clark, 121 Mo. 169; Shelton et al. v. Thompson Bennett, 96 Mo.App. 332; Aultman v. Booth, 95 Mo. 386. (b) There was a delivery of the goods. Macomber v. Parker, 30 Mass. 175. (2) If at the time of the sale, the purchaser has possession of the articles bought, no actual delivery is necessary to be made and so idle a ceremony as the formal or symbolical delivery the law does not require. Shurtliff v. Willard, 36 Mass. 202, 209; Macomber v. Parker, 13 Pick. 183, 30 Mass. 175; Chapman v. Searle, 3 Pick. 45; Reyer v. Rice, 36 Pa.Super. Ct. 178; McCartney v Kraper, 84 Ill.App. 266; Lead Co. v. White, 106 Mo.App. 222; Kaufman v. Schilling, 58 Mo. 218; Criley et al. v. Vasel, 52 Mo. 448. (3) It therefore follows that if appellant purchased a proportionate number of the doors out of a larger number belonging to Woods, and then took possession of the whole number, and thereafter performed acts of ownership, such as insuring the doors and making sales and deliveries in his own name from the proportion claimed by him, there is such delivery to appellant of the doors as will pass title to the proportion claimed by him as against respondent. McCartney v. Kraper, 84 Ill.App 266; Macomber v. Parker, 30 Mass. 175.
Haff, Meservey, German & Michaels for respondent.
(1) As there was no marking, identification or separation of the 158 doors sued for from the 750 doors no title passed to plaintiff and he cannot recover. Longsdorff v. Meyers, 171 Mo.App. 255; Adam Roth Gro. Co. v. Lewis, 69 Mo.App. 446; American Metal Co. v. Daugherty et al., 204 Mo. 71; Kendall Boot & S. Co. v. Bain, 46 Mo.App. 581; Woods v. M'Gee, 7 Ohio 469; Bailey v. Smith, 41 N.H. 141; England v. Moreland, 3 Mo.App. 490. (2) The foregoing rule applies even though the whole mass be in the vendee's or a bailee's possession. But in the case at bar the vendee did not have any independent possession. Friend & Fox Paper Company v. St. Charles Starch Company, 6 Mo.App. 598; England v. Morland, 3 Mo.App. 490; Bailey v. Smith, 41 N.H. 141. (3) Even though the sale to Boyer had been of the whole carload of doors, it would have been void as against defendant. R. S. Mo. 1909, sec. 2887; Claflin v. Rosenberg et al., 42 Mo. 439; How v. Taylor, 52 Mo. 592; Halderman v. Stillington, 63 Mo.App. 212.
--Plaintiff sued defendant in a justice court for the conversion of 158 doors valued at $ 350. A jury was waived in the circuit court to which the cause was appealed and plaintiff, at the close of his evidence was compelled to take an involuntary nonsuit with leave. Afterward his motion to set aside the nonsuit was overruled and he appealed.
The question for decision is the sufficiency of the evidence introduced by plaintiff to raise an issue for the court to determine as a trier of fact.
Boyer, the plaintiff, and E. N. Woods were young men of the same age who were lifelong friends and sustained intimate and confidential business relations with each other. Woods was doing business in Kansas City as a wholesale lumber dealer under the name of the Woods Lumber Company and had an office in an office building. Boyer was engaged in selling doors on his own account and was allowed to have his office with Woods free of charge. He also kept the books for Woods' business for which he was paid a salary and he sold lumber for Woods on commission. In February, 1913, Woods bought 750 fir doors from a dealer in Tacoma, Washington, and at the time the order was given he and Boyer agreed that the latter would purchase half of the doors from Woods at the same prices Woods was to pay and would credit a note of $ 1000 he held against Woods for borrowed money, with the purchase price of the doors he bought. But when the car arrived Woods had made a partial payment on the note which reduced the amount to about $ 300, and instead of buying half the doors, Boyer agreed to take a sufficient quantity to satisfy the remainder on the note. In other words, instead of buying 375 doors from Woods, he bought 205 of the value of $ 300. An itemized but unsigned memorandum of the sale was made by Woods which showed that 205 doors in eight different sizes were purchased by Boyer. In five of the sizes Boyer took ten doors each; in one thirty doors, in another fifty, and in another, seventy-five. The 750 doors were unloaded from the car and piled in a warehouse under the control of Boyer under an agreement that since Boyer was allowed to have an office with Woods without charge, he would charge Woods nothing for storing his doors. There was no separation of the doors and no marks placed upon them by which the 205 purchased by Boyer might be identified. Boyer superintended the unloading and storing, and afterward attended to making sales and deliveries. When a sale was made he would check it off on the memorandum and note thereon the number of doors he had left in the piles. He procured a policy of insurance covering all the doors and paid the premium, but later received payment from Woods of his proportion of the premium.
Woods became financially embarrassed and on August 30, 1913, about four months after the arrival of the doors, he sold to defendant, one of his...
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