Coleman v. Reynolds

• Decision Date: 27 November 1907
• Citation: 105 S.W. 1070,207 Mo. 463
• Parties: COLEMAN v. REYNOLDS.
• Court: Missouri Supreme Court

105 S.W. 1070

207 Mo. 463

COLEMAN v. REYNOLDS.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. APPEAL—QUESTIONS NOT RAISED AT TRIAL.

Where motions to bring in another party plaintiff and to consolidate the suit with another similar suit are not shown to have been ruled on at the trial, and no error was predicated, in the motions for a new trial and in arrest, on the court's failure to rule on such motions, they will be treated as waived.

2. SALES — CONTRACT—RESERVATION OF TITLE —EVIDENCE.

Evidence held to sustain a finding that a sale on a contract of certain lumber in controversy reserved title to the seller until the lumber was paid for.

3. REPLEVIN—RESERVATION OF TITLE—RIGHT TO POSSESSION.

Where plaintiff sold certain lumber to defendant under a contract reserving title until the lumber was paid for, defendant having wrongfully possessed himself of certain of the lumber without paying for it, plaintiff was entitled to maintain replevin therefor.

4. APPEAL—JUDGMENT—PREJUDICE.

Where a verdict is for the right party, a judgment thereon will not be reversed because of errors in instructions addressed to an immaterial issue.

5. REPLEVIN—POSSESSION OF PROPERTY—CUSTODIA LEGIS.

Defendant sued H. in replevin for plaintiff's lumber, which was delivered to defendant under the writ, and while such action was pending plaintiff brought replevin against defendant to recover the lumber from him. Held, that the property was not in custodia legis, and that plaintiff was neither required to intervene in the first suit nor wait its determination before enforcing his right to recover the lumber.

6. JUDGMENT—RES JUDICATA—PARTIES.

Where defendant sued H. to recover lumber belonging to plaintiff, plaintiff not being a party to that suit and not claiming under H., any judgment that might be rendered therein would not be res judicata as to plaintiff's rights.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by H. P. Coleman against S. P. Reynolds. From a judgment for plaintiff, defendant appeals. Affirmed.

Faris & Oliver, for appellant. J. R. Brewer and Everett Reeves, for respondent.

LAMM, J.

Coleman sued Reynolds in replevin in the circuit court of Pemiscot county to recover possession of 256,000 feet of described cottonwood lumber, in part in certain cars and in part in a certain millyard, and was put in possession under his writ. At the trial judgment went in Coleman's favor, and Reynolds appeals here.

No point is made on the petition, which is in conventional form and needs no attention. The answer was a specific denial of each averment of the petition, except that relating to the value of the lumber. It is alleged, furthermore, that defendant owned the lumber at the time suit was brought, and owns it now, and is entitled to the possession. The damages for plaintiff's alleged unlawful taking and detention is put at the sum of $3,000, and defendant claims said damages and the return of the lumber. The answer then avers that prior to the institution of the suit at bar defendant, Reynolds (as plaintiff), brought replevin against one Hurd for the same lumber, and by the writ in that case was put in possession of it by the sheriff of Pemiscot county; that said prior suit is pending and undisposed of in the circuit court of said county; that said lumber, by the writ issued in said prior suit, came into "the custody of the court as aforesaid, and defendant says that plaintiff herein cannot have and maintain his cause of replevin against said lumber and property for the reason above stated." Finally, the answer states that "defendant prays that said O. P. Hurd may be by a proper order of court brought in and made a party plaintiff to this action, that said two suits now pending may be consolidated and that upon a proper hearing defendant have judgment as above prayed herein, and for his costs." The replication was, in effect, a denial of new matter in the answer.

1. If the concluding clause of the answer, by whatsoever benevolent and bland interpretation, be deemed two motions, one that Hurd be brought in as a party plaintiff, and the other that the two replevin suits be consolidated, yet we find no ruling nisi on such submerged motions, so hid away in such unexpected place as an answer. We find no disposition of the motions in the abstract, and no error predicated, in the motions for new trial and in arrest, on any failure to rule in that behalf. Therefore such questions become by-matter and out of the case.

2. In 1902 Coleman was a millman, running a sawmill in Pemiscot county and manufacturing lumber. In that year one Stinson appeared on the scene, representing Houston Bros., of Cairo, Ill., and contracted in their name and in their behalf with plaintiff for a lot of lumber—as we infer, "in the stick." At all events, whether in the stick or not, it was not ready for delivery, was roughly estimated at nearly 350,000 feet —the price, $11.75 per 1,000 feet, "log run." At a certain time plaintiff entered upon the performance of this contract, and we take it some of the lumber had been inspected by Stinson; but, whether this be so or not, plaintiff demanded an advancement to pay his mill hands, and Stinson informed him that Reynolds would advance the money. There was evidence introduced by defendant tending to show that Houston Bros. refused to take the lumber on the terms agreed on, or propositions made to their agent, Stinson, and refused to make any advancement on lumber "in the stick"; that plaintiff was informed of that fact, and thereupon entered into a new contract with Reynolds, with full knowledge of the fact that he was thereafter dealing with the latter, and not with Houston Bros. There is, however, evidence introduced by plaintiff (and some phases of it are corroborated by defendant's testimony) that Reynolds at this time was dealing in connection with Houston Bros.; that, when Stinson referred plaintiff to Reynolds, plaintiff was allowed to suppose he was still dealing with Houston Bros. and carrying out the deal made with Stinson, and never became aware of the fact that Reynolds claimed to be the owner of the lumber until about the time (or after) the replevin suits were brought. The testimony is exceedingly diffused and confused on this point. Some of the lumber, say 60-odd thousand feet, was delivered; and some of the testimony indicates that Houston Bros. got one part of that so delivered, and that Reynolds got another. Some of the testimony bears the construction that Reynolds got all that was delivered, and that whatever part Houston Bros. got came from Reynolds. But we deem all of this testimony unimportant. It throws no light on the vital question in the case, to wit, who was entitled to the possession of the lumber in suit when suit was brought? The right answer to that question does not depend upon the time when plaintiff became aware of the fact that Reynolds claimed the lumber and was paying for it out of his own funds. It sufficiently appears that Reynolds and plaintiff entered into a new arrangement, as plaintiff supposed, on behalf of Houston Bros., and, as Reynolds contends, on his own behalf; and the record substantially shows that it was on Reynolds' behalf alone. This arrangement was made because there was a squabble between Stinson and plaintiff about the terms of the original contract, which squabble arose after Stinson began inspecting the lumber ostensibly for his principals, the Houston Bros. Be that as it may, it appears, as said, that Stinson sent plaintiff to Reynolds to receive a demanded advancement, that Reynolds advanced him $500 of his own money, and thereafter in two other installments advanced him enough more to make up the sum of $1,746, at $5 per 1,000 feet on the estimated amount of lumber covered by the contract—leaving $6.75 per 1,000 feet back.

The case was put to the jury on two theories by plaintiff's instructions. The first theory was based on the terms of the new arrangement finally entered into between plaintiff and defendant. It involves the question whether the title and right to possession remained in plaintiff under the terms of the contract until the lumber was paid for by defendant. The second theory is based on the notion of a rescission of the contract by plaintiff; and this theory involves a consideration of the facts uncovered at the trial relating to alleged violations of the contract by Reynolds and his agent, one Bostick, upon which facts plaintiff builds a contention that he was entitled to rescind and did rescind. It stands admitted in the case that the lumber was not paid for in full by defendant. It stands admitted defendant never tendered such payment. If, therefore, it be determined by the uncontradicted testimony that under the contract the sale was cash on delivery, that defendant was not entitled to possession until payment was made (the two acts being concurrent), and that the title was to remain in plaintiff until such time, then we need not consider the second theory, nor the instructions on either side relating to that theory, because error in the giving or refusing of such instructions could not be error materially affecting the merits of the case. If, however, there was any substantial evidence in the case that the terms of the sale did not include cash on delivery, and that the title was not to remain in plaintiff until the lumber was paid for, and if the facts tend to show that under the contract the defendant was entitled to and in rightful possession of the lumber at the institution of the suit (unless the contract was rescinded), then the question of rescission is reached, the instructions pro and con on that question become material, and the assignment of error relating to such instructions is here for consideration.

Attending to the contract between plaintiff and defendant, the record shows this condition of things: The new arrangement between plaintiff and defendant was...