Citizens' Bank v. Tiger Tail Mill & Land Co.

• Decision Date: 14 November 1899
• Citation: Citizens' Bank v. Tiger Tail Mill & Land Co., 53 S.W. 902, 152 Mo. 145 (Mo. 1899)
• Court: Missouri Supreme Court
• Parties: CITIZENS' BANK OF ST. LOUIS v. TIGER TAIL MILL & LAND CO.

53 S.W. 902

152 Mo. 145

CITIZENS' BANK OF ST. LOUIS v. TIGER TAIL MILL & LAND CO.

Supreme Court of Missouri, Division No. 2.

November 14, 1899.

TROVER — PETITION — NECESSARY AVERMENTS — HOLDER OF COLLATERAL — RELATION TO THIRD PERSON — REVIEW — CONFLICTING EVIDENCE.

1. A petition in trover, which does not allege that plaintiff had possession, or the right to the possession, of the property at any time, is insufficient.

2. One holding a bill of sale as collateral security stands in the same relation as his debtor

to a third person claiming the property transferred thereby.

3. Though the evidence is conflicting, if there is some substantial evidence to support the conclusions of the court below, they will not be disturbed.

Appeal from St. Louis circuit court.

Trover by the Citizens' Bank of St. Louis against the Tiger Tail Mill & Land Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action of trover for 86 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 28th day of August, 1893, and ever since, plaintiff became, has been, and now is the owner of 86 piles of cottonwood lumber, known as and numbered 1 to 86, both numbers inclusive, situate in the yard of defendant at Tiger Tail, Tenn., and altogether containing 648,100 feet, which said personal property was and is of the value of, to wit, $5,000; 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 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 & 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 5,000,000 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 90 days, at the rate of $7 per thousand feet, and thereafter, within 4 months (navigation permitting), was to measure and take away the lumber, upon giving its 90 days' notes for the further sum of $1.30 per thousand feet. The answer further stated that prior to the 12th 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 for it its notes at $8.30 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 $7 per thousand feet, but which remnant it had never taken from defendant's possession; that on said 12th 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 27th day of July, 1892, the Tiger Tail Mill & Land Company entered into a written contract with the Southern Transportation & Lumber Company, by which the former sold to the latter 5,000,000 feet of cottonwood lumber, in stack, on its mill yard at Tiger Tail, Dyer county, Tenn. 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 permiting. 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, and for all lumber so measured the said parties of the second part shall execute to said parties of the first part their ninety days' note or notes, for an amount equal to one dollar and thirty cents for each 1,000 feet so measured, on which part payments have been made, as before provided. The one dollar and thirty cents so paid shall constitute the payment in full for said lumber, and a full receipted bill shall be given for such as is removed. But it is agreed that, in case the said parties of the second part desire to remove any lumber cut under this contract on which they have not made the payment of seven dollars as herein provided, they shall be permitted to do so, but shall, at the time of the removal of such lumber, give their note or notes at ninety days for the full purchase price of eight 30/100 dollars per thousand feet for all such lumber removed."

Under this contract, up to August 26, 1893, defendant had received notes from the Southern Transportation & Lumber Company for 3,500,000 feet of the lumber contracted for, of which 2,856,732 feet had been fully paid for in notes and removed, leaving a balance of 643,268 feet undelivered, for which notes had been executed, as per agreement. On August 26, 1893, Gaertner, the secretary of the Southern Company, called upon the president of defendant at the St. Louis office of the latter, and obtained...