Coover v. Johnson

• Decision Date: 31 October 1885
• Citation: 86 Mo. 533
• Parties: COOVER, Appellant, v. JOHNSON.
• Court: Missouri Supreme Court

86 Mo. 533

COOVER, Appellant,

v.JOHNSON.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

W. D. Hubbard and J. P. McCammon for appellant.

(1) There was a delivery of the scales to the vendee. 1 Pars. on Cont. (6 Ed.) bottom page 638, side page, 603; 2 Kent's Com. (4 Ed.) top pages 498, 499, side pages 499, 500, 544-5; Williams v. Gray, 39 Mo., side page 201, and authorities cited; Comstock v. Affoelter, 50 Mo. 411; State to use of Gates v. Fitzpatrick, 64 Mo. 185. (2) The declarations of law asked by interpleaders and given, as well as those asked by plaintiff and refused by the court, show that the case was decided on the theory, that, as Johnson's debt to plaintiff was an antecedent debt, contracted before the scales were bought by Johnson, therefore, plaintiff could not hold the scales against interpleaders. But one who takes personal property in payment of an antecedent debt is a bona fide purchaser for value. Hess et al. v. Clark et al., 11 Mo. App. 492; Lee v. Kimball, 45 Me. 172; Greene v. Kennedy, 6 Mo. App. 577; Butters v. Haughwout, 42 Ill. 18, and cases there cited. (3) An unrecorded deed will not be valid as against creditors, even if known to them, when it would be valid as to a subsequent purchaser if known to him. 3 Washburn on Real Prop. (4 Ed.) 323; Washington v. Trousdale, Mart & Y. 385, 391; Lillard v. Rucker, 9 Yerg. 64, 73; Edwards v. Brinker, Dana, 9; Ring v. Gray, 6 B. Mon. 368, 374; Guerrant v. Anderson, 4 Rand. 208. (4) The contract between interpleaders and defendant Johnson having been neither acknowledged nor recorded, and the possession of the scales having been delivered to Johnson, the sale to him was subject to no conditions, whatever, as against Coover, a creditor of Johnson. Interpleaders, when they had it wholly in their power to secure themselves, by their own negligence and laches, forfeited all rights to the scale as against attaching creditors. R. S., secs. 2505, 2507.

John O'Day for respondent.

(1) A sale and delivery of goods, on condition that the title to the property is not vested until the purchase money is paid or secured, does not pass the title to the vendee until the condition is performed and the vendor, in case the condition is not fulfilled, has the right to repossess himself of the goods both as against the vendee and his creditors. Ridgway v. Kennedy, 52 Mo. 24; Little v. Page, 44 Mo. 412; Griffin v. Pugh, 44 Mo. 326; Parmlee v. Catherwood, 36 Mo. 476; Robbins v. Phillips, 68 Mo. 100; Wangler v. Franklin, 70 Mo. 659. “No sale of goods is complete in the vendee, nor is he entitled to an immediate right of property, so long as anything remains to be done by the vendee.” Hening v. Powell et al., 33 Mo. 474; Bass v. Walsh, 39 Mo. 192; Freight Co. v. Stanard, 39 Mo. 71. There is no disputed question of fact in this case. Plaintiff admits that the debt on which he sued Johnson and attached the material for the scale, was contracted and due years before the conditional contract of sale made between Johnson and respondent; also that he knew at the time the agreement was made that Johnson paid no part of the purchase money, and that the title was to remain in Fairbanks & Company until the scale was paid for. Appellant is not a subsequent creditor, within the meaning of the term as used in the statute, which provides that conditional sales of personal property shall be void as to subsequent purchasers (in good faith) and creditors, unless the conditions be evidenced by writing and acknowledged and recorded, as in case of mortgages.

SHERWOOD, J.

Johnson bought a pair of scales of Fairbanks & Company. The sale was a conditional one, the title being retained in the vendors until the property should be fully paid for. Johnson, after the scales were shipped to him at the town of Republic, paid the freight, receipted for them, asked and received permission of the station agent for them to remain in the freight house at Johnson's risk. This permission was shortly thereafter extended on the same terms, the station agent agreeing to ship the scales to Johnson in the state of Kansas, to which state Johnson soon afterwards went, not having paid any portion of the purchase money. Coover is a creditor of Johnson's of some years standing, a portion of the indebtedness having accrued as far back as 1878, and all of it prior to the time Johnson bought the scales. The note in suit is dated January 23, 1882, due one day after date, and matured the day Johnson made his exit. Coover kept store in Republic; was well acquainted with Johnson, who, at one time, had done business for him; knew of his intended departure two or three days before it occurred, and prior to suit brought, was thoroughly conversant with the terms of the contract of sale made between Fairbanks & Company and Johnson.

Coover having brought suit against Johnson and attached the scales referred to, Fairbanks & Company interpleaded, claiming them as their property, and on trial had of their interplea, the foregoing facts were elicited. On those facts the court, at the instance of the interpleaders, declared the law as follows:

“That if you believe from the evidence that Johnson was indebted to Coover for the debt sued on in this suit, at the time he executed the contract of purchase with Fairbanks & Company for the scales, and that Johnson left the country and failed to carry out his contract with Fairbanks & Company, and you further believe that Coover knew the terms and conditions upon which Johnson purchased said scales, and, with that knowledge, attached the scales in controversy as the property of Johnson on said debt due from Johnson to him (Coover), then the judgment should be for the interpleaders, Fairbanks & Company.”

But the court, though requested by plaintiff so to do, refused to declare the law that:

“1. The condition in the contract of sale in evidence, that Fairbanks & Company do not relinquish their title to the scales and its attachments in question until said property in question is paid for, is null and void as to creditors of defendant Johnson, said contract not having been acknowledged and recorded as in case of mortgaged personal property; and if the evidence proves that defendant Johnson owed the plaintiff, Coover, the note here sued on, when this suit of Coover's was commenced, and that the scale and its attachments were shipped by interpleaders from St. Louis to Republic, Mo., on the railroad, to defendant Johnson, and at Republic delivered by the railroad company to Johnson, and plaintiff Coover afterward had said property attached in this suit, then interpleaders cannot recover it in this proceeding.” Other declarations of law were given, and others refused, but those just copied present and contain the kernel of this cause.

It has frequently been decided in this state that the seller of personal property might, by contract with the buyer, reserve the title of such property in himself until payment was made, and that such reservation would be valid even as against a bona fide purchaser. Wangler v. Franklin, 70 Mo. 659, Robbins v. Phillips, 68 Mo. 100, and cases cited; Sumner v. Cottey, 71 Mo. 121. But those adjudications were made in cases which arose prior to the statutory provisions to which plaintiff's counsel have...