Chemical Bank of Sweet Springs v. Rhodes

• Decision Date: 06 January 1930
• Citation: 22 S.W.2d 1055,224 Mo.App. 217
• Parties: CHEMICAL BANK OF SWEET SPRINGS, RESPONDENT, v. E. F. RHODES ET AL., DEFENDANTS, JOHN W. KNAUS, APPELLANT. [*]
• Court: Kansas Court of Appeals

22 S.W.2d 1055

224 Mo.App. 217

CHEMICAL BANK OF SWEET SPRINGS, RESPONDENT, v. E. F. RHODES ET AL., DEFENDANTS, JOHN W. KNAUS, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

January 6, 1930

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

Barnett & Hayes for respondent.

M. D Aber for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is a controversy between plaintiff, a judgment creditor, and a claimant under section 1635, Revised Statutes 1919 involving the ownership of eight cows and four calves. At the close of all of the testimony the court sustained plaintiff's demurrer to the evidence, resulting in a verdict and judgment for plaintiff. Claimant has appealed.

The facts show that on April 5, 1928, plaintiff filed this suit asking judgment against defendants for the balance due on a promissory note. On May 28, of that year a judgment was rendered in favor of plaintiff and against defendants for $ 1226.23 and costs. On June 14, 1928, execution was issued upon the judgment directed to the sheriff of Johnson County who, on the same day, made a levy under the execution upon the cows and calves in question located in the pasture of one Carl Swisher in Johnson County. The sheriff took the stock into his possession and put them in another pasture. Thereafter on the next day John W. Knaus, the claimant herein, filed with the sheriff his claim under section 1635, Revised Statutes 1919, claiming to be the owner of the stock in question.

The facts further show that on May 24, 1928, E. F. Rhodes of Pettis County, one of the defendants herein, was the owner of the stock in question together with another cow, a heifer and mules. Claimant testified that said Rhodes came to the witnesses' residence on said day seeking to sell "some cows and little calves and some heifers" owned by Rhodes. Claimant agreed to go and see the stock. The two then went to Swisher's pasture which was one and three quarters miles northwest of claimant's residence. There they viewed the eight cows and four calves in controversy. They observed that a newly arrived calf had not yet taken nourishment and that the mother needed attention. Following this the two went some eight or nine miles to the home of Rhodes, which was in the northwestern part of Pettis County, where another cow, a heifer and some mules were viewed. The witness offered Rhodes $ 680 for the cows, heifers and mules but no sale took place. The next day, about sundown, Rhodes returned to the witnesses' home where the cows, heifers and mules were sold to claimant for $ 700. Claimant drew a check upon the Bank of Knobnoster in favor of Rhodes for the amount, which check was cashed by Rhodes.

At the time the check was delivered by claimant he inquired when the property would be delivered and Rhodes replied "right now in Swisher's pasture, and the others as soon as I get the crop in." Rhodes further said "you had better look after that cow . . . the calf isn't taking any milk."

Claimant further testified that he arranged with the bank for the cashing of the check, "and I don't know whether just that day or the next, but a few days after that I went down to this pasture and seen that the calf was taking the milk;" that he told Rhodes when he purchased this stock "you see Swisher and tell him who to look to for the cattle and pasture deal;" that Rhodes replied, "all right, and if you see him you tell him;" that he did not see Swisher or Rhodes after that until the sheriff came and took the stock.

The claimant further testified that when he purchased the cattle he knew Rhodes was in financial difficulties; that they were related, (but the degree of relationship was not shown); that he knew Rhodes had lost his farm; that Rhodes told him that he (Rhodes) had been sued; that he inquired of Rhodes if there was anything against the stock and Rhodes replied, "nothing in the world;" that he supposed Rhodes was selling the cattle in order to get the money on them. Asked in reference to what he did after he purchased the cattle he testified:

"I went down there (the Swisher pasture) several times to see that this calf was taking this milk, because I didn't want to spoil the bag; the calf was taking the milk, consequently, I didn't have to drive her to the house to fix her up.

"Q. And how often did you do that during the period following the purchase until the sheriff got the cows? A. I'll say several times, because I never kept account; I wasn't looking for nothing of this kind you know.

The claimant further testified that the cows in question were white face stock and were in the pasture with a white face bull; that the cows were left in the pasture by him so that they might be bred to a white face bull, as well as get the grass; that the witness's bull at his farm was a black one.

It is insisted that the court erred in sustaining the demurrer to the evidence for the reason that title to the stock passed to claimant as against defendant's creditors for section 2282, Revised Statutes 1919, was complied with in that the delivery of the stock in question by Rhodes to claimant was sufficient "until the expiration of a reasonable time for delivery of possession, regard being had to the situation of the property," and what was a reasonable time in this instance was a matter for the jury. This point will be ruled against claimant for the reason that it is well settled that in such circumstances where the property sold is in the possession of a third person holding it as bailee or agister for the seller, if actual delivery is not made, the bailee should be notified of the sale. [Hopson v. Pregee, 228 S.W. 859; How v. Taylor, 52 Mo. 592; Halderman v. Stillington, 63 Mo.App. 212; Harrison v. Foster, 62 Mo.App. 603; Worley v Standley, 22 Mo.App. 546; Peck v. Brummagim, 90 Am. Decisions 196; Buhl Iron Works v. Teuton, 67 Mich. 623, 35 N.W. 804; Whitney v. Lynde...