Citizens' Bank of St. Louis v. Tiger Tail Mill & Land Co.

• Decision Date: 14 November 1899
• Citation: 53 S.W. 902,152 Mo. 145
• Parties: Citizens' Bank of St. Louis, Appellant, v. Tiger Tail Mill and Land Company
• Court: Missouri Supreme Court

53 S.W. 902

152 Mo. 145

Citizens' Bank of St. Louis, Appellant, v. Tiger Tail Mill and Land Company

Supreme Court of Missouri, Second Division

November 14, 1899

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.

Affirmed.

Valle Reyburn for appellant.

(1) Plaintiff's petition is sufficient. The material averments in an action of trover are ownership or possession of the property in the plaintiff and its wrongful taking and conversion by defendant. 26 Am. and Eng. Ency. of Law 744-757 and 801; Kniffer v. Blumenthal, 107 Mo. 665. (2) The lien of defendant as vendor, upon the lumber in controversy otherwise conferred by legal implication was expressly waived by the provisions of the contract of sale by the continuance and extension of credit to the Southern Company by the delivery of the order to Gaertner for the lumber undelivered, and could not be revived against this plaintiff; and defendant is estopped by its own actions and course of conduct from asserting as against this plaintiff any such lien, right or claim. Story on Sales (4 Ed.), sec. 287; 1 Jones on Liens, secs. 842-848; Tiedeman on Sales, sec. 120; Bigelow on Estoppel (5 Ed.), pp. 561, 570, 571, 579, 580 and 585.

Stewart, Cunningham & Eliot for respondent.

(1) Plaintiff could not recover because this is a suit in trover for conversion, and plaintiff has not shown by the proofs that it was ever entitled to possession of the property. Bank v. Fisher, 55 Mo.App. 51; Deland v. Vandstone, 26 Mo.App. 297; Johnson & Co. v. Bank, 116 Mo. 558; 26 Am. and Eng. Ency. of Law, 744 and note 5; Doering v. Kenamore, 86 Mo. 558. Confessedly $ 1.30 per thousand feet must have been paid in notes or money before delivery could be claimed. No payment or tender of payment or notes was proved. Henderson v. Cass Co., 107 Mo. 50; Chase v. Welsh, 45 Mich. 345; Liebbrandt v. Myron Lodge, 51 Ill. 81; Jones v. Mullinix, 25 Ia. 198; Bacon v. Smith, 2 La. Ann. 441; Harmon v. Magee, 57 Miss. 410; Sheredine v. Gaul, 2 Dallas (Pa.) 190; Hunter v. Warner, 1 Wis. 141. (2) On July 12, 1893, and before bill of sale to plaintiff there was a partial rescission of the contract, and an agreement between defendant and the Southern Company that the undelivered lumber for which notes had been given at the rate of $ 7 per thousand feet, should remain in defendant's hands till the notes held by defendant should be paid. This agreement of itself, and without reference to other circumstances, gave the defendant a lien upon this remnant for amount of the notes. (3) The plaintiff could acquire by the bill of sale no greater or better right to the lumber than the Southern Company had, and so this case is to be treated as if it were a suit by the Southern Company for conversion of this lumber. Southwestern freight Co. v. Plant, 45 Mo. 517; 37 Mo.App. 352; Conrad v. Fisher, 37 Mo.App. 389. Especially so since the plaintiff paid no value and had notice of the Southern Company's insolvency. Doering v. Kenamore, 86 Mo. 588; Conrad v. Fisher, 37 Mo.App. 422; Young v. Kellar, 94 Mo. 581.

BURGESS, J. Gantt, P. J., concurs; Sherwood, J., absent.

OPINION

BURGESS, J.

This is an action of trover for eighty-six piles of cottonwood lumber, of the alleged value of $ 5,000, of which plaintiff claims to have been the owner, and which it alleges was wrongfully converted by defendant to its own use.

The petition alleges, "That, heretofore, to wit, on the twenty-eighth day of August, 1893, and ever since, plaintiff became, has been and now is, the owner of eighty-six piles of cottonwood lumber, known as and numbered one to eighty-six, both numbers inclusive, situated in the yard of defendant at Tiger Tail, Tennessee, and altogether containing six hundred and forty-eight thousand and one hundred feet, which said personal property was and is of the value of, to wit, five thousand dollars. That afterwards, to wit, on the day of May, 1894, said property came into the possession of the defendant, who, then and there, unlawfully converted the same to its own use and disposed of the same, to plaintiff's damage in the sum of $ 5,000," etc.

Defendant's answer, after admitting that both parties were corporations, denied every other allegation of plaintiff's petition, and by way of special defense, set up that the lumber in controversy was the remnant of a larger lot which defendant had manufactured for the Southern Transportation and Lumber Company, under a written contract set forth in the answer, by the terms of which contract defendant was to saw and stack upon its premises five million feet of lumber, which, upon the giving by the Southern Company of certain notes, was to be marked and set apart by defendant on defendant's premises for said Southern Company, as its property, subject to the giving of further notes for the purchase price before it should be removed. For the lumber so manufactured and set apart, said Southern Company was, at the end of each month, to give defendant its notes at ninety days, at the rate of $ 7 per thousand feet, and thereafter, within four months (navigation permitting), was to measure and take away the lumber, upon giving it ninety days' notice for the further sum of $ 1.30 per thousand feet.

The answer further stated that prior to the twelfth day of July, 1893, more than half of the lumber called for by the contract had been sawed and stacked and set aside by defendant for the Southern Company, which company had removed most of that half, giving therefor its notes at eight dollars and thirty cents per thousand feet; and that there remained in defendant's possession some of the stacked lumber, for which the Southern Company had given its notes at the rate of seven dollars per thousand feet, but which remnant it had never taken from defendant's possession; that on said twelfth day of July, 1893, said Southern Company had become insolvent and had defaulted in payment of a large part of its said notes, and thereupon, on or about that day, agreed with defendant that the contract should be canceled as to that part of the lumber which had not then been manufactured and set apart, and that the remnant of stacked lumber still in defendant's possession should remain there until within a reasonable time, when the Southern Company should pay for it and take it away; that said Southern Company continued insolvent, never paid its said defaulted notes, and, though often requested by defendant, never paid the price of said remnant, which always remained in defendant's possession; that defendant, after waiting for more than a year, from July 12, 1893, gave notice to the Southern Company, and on August 14, 1894, sold said remnant still in its possession for account of said Southern Company at the best price it could obtain, and applied the proceeds of the sale towards satisfaction of the Southern Company's notes given for the purchase price which notes were then held by defendant and largely exceeded in amount the proceeds of that sale.

The plaintiff replied to defendant's answer, admitting the contract between defendant and the Southern Company, and the sawing and stacking of lumber, but denied all other averments of the answer, and set forth specially that on or about August 28, 1893, the Southern Company had made to plaintiff a bill of sale for the remnant of lumber stacked on defendant's premises and set apart for the Southern Company, and that plaintiff had given defendant notice of said bill of sale.

The facts are about as follows:

On the twenty-seventh day of July, 1892, the Tiger Tail Mill and Land Company entered into a written contract with the Southern Transportation and Lumber Company, by which the former sold to the latter five million feet of cottonwood lumber in stack on its mill yard, at Tiger Tail, Dyer County, Tennessee. Both parties to the contract had their principal offices in the city of St. Louis, where the contract was executed. The contract contains the following provisions:

"The said parties of the second part contract and agree to pay for said lumber in the following manner: On the first of each month the amount of lumber on said mill yard that was sawed and stacked on this contract, during the previous month shall be carefully estimated, and on the amount so estimated they shall execute to the parties of the first part their promissory note, payable at ninety days, for an amount equal to seven dollars per one thousand feet, for the whole amount so estimated, at the time in each month. Said notes are not to be considered as an advance on said lumber but as a part payment on same, under this contract. All lumber so estimated and on which payment has been made, as above stated, shall at the time of such payment be marked in the name of the said parties of the second part, and shall be their property, free from the claims of any person or persons whomsoever, except the balance of one dollar and thirty cents per 1,000 feet due said parties of the first part, which is to be paid as hereinafter provided. Said parties of the second part contract and agree to remove said lumber from said mill yard within four months from time same is put in stack, said time to date from the first lumber stacked under this contract, and no lumber sawed under this contract is to remain on said mill yard over four months, navigation of the rivers permitting. When said parties of the second part desire to remove any part of said lumber from said mill yard, they shall give said parties of the first part at least three days' notice of such desire, and agreement shall then be made between them as to who shall measure said lumber, according to the terms of this contract, and the party or parties so agreed on, shall go to said mill and measure such lumber as is intended to be removed,...