Clary v. Tyson
| Decision Date | 05 January 1903 |
| Citation | 71 S.W. 710,97 Mo.App. 586 |
| Parties | JOHN P. CLARY, Respondent, v. GEORGE A. TYSON, Defendant; CITIZENS' STATE BANK, Interpleader, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. W. K. James, Judge.
Reversed and remanded.
F. I Foss and Porter & Groves for appellant.
(1) The arrangement between the interpleader bank and Tyson, by which the hogs were bought for the bank by Tyson in his own name was valid; there is no controversy between Tyson and the bank as to the ownership of the property; it is not claimed that the attaching creditor is in any manner injured by the transaction, his being an antecedent debt. Anderson v Biddle, 10 Mo. 23. If the arrangement had been for a lien upon the property in favor of the bank, the lien would have attached to the property in Tyson's hands, and could have been enforced against the creditors of Tyson. Jones on Liens, sec. 63. (2) Whether the effect of the agreement was to create a lien on the property for the money advanced, or to make Tyson a trustee of the bank, is not material; the effect and the principle are the same. If the purchase and consignment of the hogs in Tyson's name, under the circumstances, raised a question as to the ownership of the property, the question was settled by Tyson's draft on the consignee in favor of the bank, and delivery to it of the bill of lading. 1 Benj. on Sales (4 Am. Ed.), sec. 577. This whether the bill of lading is indorsed or not. Holmes v Bailey, 92 Penn. 57; Hathaway v. Haynes, 124 Mass. 311; Shaw v. Bank, 101 U.S. 557. (3) As there was in the case no question of intervening rights arising out of Tyson's apparent ownership of the hogs, the interpleader's claim to the property could only be defeated by proof of actual fraud. There was no evidence to support plaintiff's allegations of actual fraud; but if respondent contends that there was, the contention, if sustained must result in a reversal because it raised a question which the court could not lawfully take from the jury by mandatory instruction. McDermot v. Barnum, 16 Mo. 123; Mathews v. Loth, 45 Mo.App. 459; Frankenthal v. Goldstein, 44 Mo.App. 189.
D. C. Reeves and Stauber, Crandall & Strop for respondent.
(1) In attachment proceedings the right to interplead is, under our statutes (R. S. 1899, sec. 417) in the nature of an action in replevin engrafted upon the suit by attachment. Burget v. Borchert, 59 Mo. 80; Hellman v. Pallock, 47 Mo.App. 205; Huiser v. Beck, 55 Mo.App. 668; Spooner v. Ross, 24 Mo.App. 599; Paper Co. v. Mangan, 60 Mo.App. 76. (2) The demurrer to the evidence was properly sustained by the trial court. Clark v. Railroad, 36 Mo. 202; Smith v. Railroad, 37 Mo. 287; Krampe v. Brewing Ass'n, 59 Mo.App. 277; Callahan v. Warne, 40 Mo. 131; Twohey v. Fruin, 96 Mo. 104. It is not an error to take the case from the jury where the facts and legal inference to be drawn therefrom will not support a verdict. Knapp-Stout v. Joy, 9 Mo.App. 47; Jackson v. Hardin, 83 Mo. 175; Mexico v. Jones, 27 Mo.App. 534; Reichenbach v. Ellerbe, 115 Mo. 588; Hite v. Railroad, 130 Mo. 132. (3) The arrangement between Geo. A. Tyson and the interpleader bank, constituted Mr. Tyson the absolute owner of the hogs instead of said bank. Kollock v. Emmert, 43 Mo.App. 566; McDonald v. Boggs, 78 Mo.App. 28.
Defendant was indebted to plaintiff in about $ 300 and the latter brought suit by attachment against him. The sheriff seized a carload of hogs (then just arrived in St. Joseph) as the property of defendant. The appellant herein filed its interplea claiming the property. The hogs were sold by order of court and the proceeds, amounting to more than plaintiff's claim against defendant, will be held by the sheriff awaiting the result of the interplea. The trial court gave a peremptory instruction against interpleader at the conclusion of its evidence, without hearing from plaintiff. Interpleader then appealed.
The bank's cashier was the principal witness and he testified that the interpleader bank and defendant Tyson were of the same town in the State of Nebraska. That it was arranged between the bank and Tyson (who had no money) that the latter should buy stock of the farmers in the surrounding country and give his checks on the bank in payment and that it would honor them when presented. That the stock was to be driven in and shipped to market, a draft for the amount of the shipment with the bill of lading was to be delivered to the bank and the latter was to get "two dollars per car for the use of the money." The stock was so bought and was shipped to Harris & Co., commission men at St. Joseph, defendant delivering the bill of lading to the bank without indorsement. The witness stated that Tyson...
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