Charles F. Netzow Manufacturing Company v. Baker

• Decision Date: 17 May 1909
• Citation: 119 S.W. 450,137 Mo.App. 670
• Parties: CHARLES F. NETZOW MANUFACTURING COMPANY, Appellant, v. J. W. BAKER, Respondent
• Court: Kansas Court of Appeals

119 S.W. 450

137 Mo.App. 670

CHARLES F. NETZOW MANUFACTURING COMPANY, Appellant, v. J. W. BAKER, Respondent

Court of Appeals of Missouri, Kansas City

May 17, 1909

Appeal from Jasper Circuit Court.--Hon. Haywood Scott, Judge.

AFFIRMED.

Judgment affirmed.

H. L Shannon for appellant.

(1) A factor has no power to transfer the title of his principal to goods consigned to him for sale, in payment of a precedent debt due from himself, and a creditor who receives the goods under such an arrangement, though acting in good faith, and in ignorance of the fact that the goods do not belong to the factor, acquires no title, as against the principal. Warner v. Martin, 11 Howard (U.S.) 224; Potter v. Dennison, 10 Ill. 590; 12 Am. and Eng. Ency. Law (2 Ed.), p. 697, note; 19 Cyc. 174, 175. (2) In the following Missouri cases the same rule is announced, though in connection with a different state of facts. Benny v Pegram, 18 Mo. 191; Benny v. Rhodes, 18 Mo 147; Wheeler & Wilson v. Given, 65 Mo. 89. (3) Where the instruction or rulings of the court are such as to preclude a recovery, the plaintiff may take a nonsuit with leave to move to set the same aside. Overall v. Ellis, 32 Mo. 322; Martin v. Fewell, 79 Mo. 401; Dunnevant v. Mocksound, 122 Mo.App. 428.

T. C. Tadlock for respondent.

(1) In this case the plaintiff was not precluded from a recovery by the instructions given by the court to the jury or by any other action of the court, and plaintiff was under no necessity to take a non-suit, hence the appellate court will not interfere. Hageman v. Moreland, 33 Mo. 86; Layton v. Riney, 33 Mo. 87. (2) The instructions given by the court based upon the respective evidence of witness Robertson and the defendant Baker, submitted to the jury the question whether or not the defendant purchased the pianos and stools in question from the said Robertson and was thereby the lawful owner and entitled to the possession of the same at the time this suit was instituted. Plaintiff's nonsuit therefore was a voluntary one and his appeal cannot be maintained. Williams v. Finks, 156 Mo. 597, and other cases there cited. Hageman v. Moreland, 33 Mo. 86; Layton v. Riney, 33 Mo. 87; Poe v. Dominic, 46 Mo. 118; State ex rel. v. Gaddy, 83 Mo. 138. (3) In this case plaintiff took a voluntary nonsuit and he cannot appeal from his own voluntary action. Graham v. Pearson, 88 Mo.App. 385; Chouteau v. Rowse, 90 Mo. 191; Holdridge v. March, 28 Mo.App. 283. (4) In this case under instructions given by the court there was an issue submitted to the jury, and the rule is well settled in this State that if anything substantial is left in a case on which a party can stand, he must proceed to the final hearing of the whole. Schneider v. Kirkpatrick, 72 Mo.App. 103; Chiles v. Wallace, 83 Mo. 93; Loring v. Cooke, 60 Mo. 566; Schulter v. Bockwinkle, 19 Mo. 647; Koger v. Hays, 57 Mo. 329; Railroad v. Mitchel, 20 Mo. 432; Kirby v. Bruns, 45 Mo. 234.

OPINION

JOHNSON, J.

Action in replevin to recover the possession of two pianos and two piano stools. A trial resulted in a judgment for defendant and the cause is here on the appeal of plaintiff. The facts of the case are as follows: Plaintiff, a manufacturer of pianos at Milwaukee, Wisconsin, consigned the property in controversy to a factor in Jasper county, for sale in the usual course of business. Afterward the factor entered into a contract with defendant by the terms of which he agreed to buy a stock of merchandise of defendant and to exchange therefor certain real property. Further he agreed to pay defendant the excess, if any, of the invoiced value of the merchandise over the agreed value of the real estate. An invoice of the goods fixed the amount of such excess at about $ 5,000, and payment thereof was made by the transfer by the factor to defendant of a stock of goods owned by him. The pianos and stools were in the last-mentioned stock and were turned over to defendant who did not know that the factor did not own them. Defendant testified that they were sold to him by the factor for $ 510, and were received at that price in partial payment of the remainder due defendant on the purchase price of the stock he sold the factor. This was denied by the factor who was introduced as a witness by plaintiff. He testified that he did not sell the pianos and stools to defendant, that he merely left them in the custody of the defendant because he did not have time to move them out of the building and that afterwards, defendant promised to buy and pay for them, but still later, refused to do so.

At the conclusion of the evidence, plaintiff asked the court to instruct the jury that "if the plaintiff in this case consigned the pianos and piano stools in controversy to John C. Robertson for sale, and never sold or transferred the same to the said Robertson, and while the same were in the hands of the said Robertson, he, the said Robertson, sold and delivered the same to defendant in this case for and in consideration of an indebtedness of the said Robertson to the defendant, or for and in consideration and in part payment of a stock of goods which the defendant sold and delivered to the said Robertson, then your verdict should be for the plaintiff, and it makes no difference that the defendant had no knowledge of the fact that Robertson was not the owner of the goods."

The court refused this instruction and on its own motion instructed the jury "that if you believe and find from the evidence, that the plaintiffs consigned and shipped the pianos and stools in question to the witness J. C. Robertson to be sold by him, and that thereafter the defendant Baker in good...