Cass County Bank v. Hulen

• Decision Date: 02 April 1917
• Docket Number: No. 12422.,12422.
• Citation: 195 S.W. 74
• Parties: CASS COUNTY BANK v. HULEN.
• Court: Missouri Court of Appeals

195 S.W. 74

CASS COUNTY BANK v. HULEN.

No. 12422.

Kansas City Court of Appeals. Missouri.

April 2, 1917.

Rehearing Denied April 30, 1917.

Appeal from Circuit Court, Cass County; A. A. Whitsett, Judge.

"Not to be officially published."

Replevin by the Cass County Bank against P. J. Hulen. Judgment for plaintiff, and defendant appeals. Affirmed.

L. M. Crouch and W. D. Summers, both of Harrisonville, for appellant. J. S. Brierly, of Harrisonville, for respondent.

ELLISON, P. J.

This action is replevin for two mules. The judgment in the circuit court on appeal from a justice of the peace was for the plaintiff.

The evidence in plaintiff's behalf was that one Bane was the owner and in possession of the mules, and that he executed a chattel mortgage on them to secure his promissory note to plaintiff.

The evidence in behalf of defendant was that he was the owner of the mules; that he sold them to Bane for cash; that the latter got possession of them without payment and without his consent; and that he retook them.

It appears that defendant sold the mules to Bane in the latter part of January, 1916, terms cash on delivery. They lived several miles apart, and Bane, on February 5th, sent his employés to defendant's premises and had the animals brought to his place. Defendant was away from home, though his wife and his man were there. His wife was his agent in his absence. She knew Bane came after the mules, and she testified that the hired man helped him get them out of the stable. More than a week after getting possession he mailed to defendant his check dated February 14th. Defendant being still absent, his wife, who, as we have said, attended to his business, received the check and sent or presented it to the bank on the 23d of February, where payment was refused. Defendant's wife notified him by telephone, and in a day or two he came home and went to see Bane and told him of the dishonor of the check. Bane promised to return the mules, but did not do so, and defendant, though he says he continued to insist on their return, made no attempt to get them until near a month (the 18th of March) when he sent for them, and, Bane not being at home, he took them into his possession and brought them away. Plaintiff, being informed of this seizure and claiming the title and interest of a mortgagee, brought this action as stated above.

While Bane had possession of the mules he executed to plaintiff bank, on February 9th, his note for $2,150, due in 30 days, and executed the chattel mortgage on the mules in controversy and other property to secure it. This mortgage was recorded February 11th. When plaintiff received the mortgage it had no notice that Bane had purchased the mules of defendant for cash on delivery and had not paid for them.

Under conceded facts and undisputed evidence the court could not have determined the case otherwise than for the plaintiff. It may be conceded that in a sale of personal property for cash on delivery, where the vendee obtains possession without payment and without consent of the vendor, the title does not pass to the vendee, and the latter could not make a valid conveyance to another. Johnson v. Central Bank, 116 Mo. 558, 22 S. W. 813, 38 Am. St. Rep. 615. But where in such character of sale the vendor consents to the vendee's taking and retaining possession without payment, quite a different question is presented; and if the vendee, thus in possession, transfers to another without notice of the contract for cash sale, that other has a superior claim to the original vendor. Taylor v. Smith, 47 Mo. App. 141; Corning v. Rinehart Medicine Co., 46 Mo. App. 16; Straus v. Rothan et al., 102 Mo. 261, 267, 14 S. W. 940; Kane v. Manley et al., 63 Mo. App. 43; Finke & Nassa v. Pike, 50 Mo. App. 564; Lawrence et al. v. Owens, 39 Mo. App. 321-323.

In this case Bane obtained possession of the property with the consent and acquiescence of defendant's wife, who was his agent. But if he had not had consent, defendant himself, when he returned home on learning the check was unpaid, stood by and allowed the possession to continue for near one month before he took steps to regain possession. Such conduct is a waiver of the condition of the sale and precludes him when in the meantime the rights of innocent parties have intervened. Strauss Pritz Co. v. Hirsch, 63 Mo. App. 95, 103; Cobb v. Holloway, 129 Mo. App. 212, 223, 108 S. W. 109.

In this...