Crow v. Abernathy
| Citation | 156 S.W. 494,171 Mo.App. 227 |
| Parties | JAMES A. CROW and JAMES WORLEY, Appellants, v. WILLIAM ABERNATHY, Respondent |
| Decision Date | 05 May 1913 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.
Judgment affirmed.
Ernest A. Green for appellant.
(1) The court erred, as a matter of law, in refusing to give plaintiffs' declaration of law No. 5; the agreement had between W. D. Roberts and the defendant Abernathy, with reference to this lumber, did not in law constitute a sale of said lumber and, therefore, the defendant never did acquire title to the lumber in controversy. Johnson, etc., Co v. Bank, 116 Mo. 558; Thompson & Co. v. Massey, 76 Mo.App. 197; Greer v. Bank, 128 Mo. 559; Whedon v. Ames, 28 Mo.App. 243. (2) The court erred in its finding for the defendant, and in refusing to give plaintiffs' declaration of law No. 4; under the law the plaintiffs are not barred from maintaining this action by reason of the provisions of Sec. 2887, R. S. 1909, inasmuch as the possession of the real estate on which lumber was located, by the plaintiffs, was a sufficient possession of the lumber sold, to constitute the possession required under the provisions of Sec. 2887, R. S. 1909, so as to bar the subsequent purchaser of the said lumber. Sec. 2887, R. S 1909; Hawkins v. Brick Co., 63 Mo.App. 64; Simmons, etc. Co. v. Pfeil, 35 Mo.App. 256; Dillin v. Kincaid, 70 Mo.App. 670; Kendall, etc v. Bain, 46 Mo.App. 581; State ex rel. v. Hall, 45 Mo.App. 298; Watchell v. Ewing, 82 Mo.App. 594. (3) The court erred in refusing to give plaintiffs' declaration of law No. 2; as a matter of law, the lumber in controversy in this case was conveyed to the plaintiffs, and they became the owners thereof under and by virtue of the general warranty deed offered in evidence, from W. D. Roberts and wife, as grantors, to the plaintiffs, as grantees; said lumber being real property and the title thereto passing under and by virtue of said deed. Rogers v. Crow, 40 Mo. 91; McIlvaine v. Harris, 20 Mo. 457; Cohen v. Kyler, 27 Mo. 122; Life Ins. Co. v. Tillery, 152 Mo. 421.
Abington & Phillips for respondent.
(1) If there was any agreement between Roberts and Crow as testified to by the latter that the lumber in controversy should go to Worley and Crow with the land, such prior oral agreement was merged in, and obliterated by the subsequent written contract; that is to say, the deed conveying the real estate. Parsons v. Kelso, 141 Mo.App. 369; Kriling v. Cramer, 152 Mo.App. 431; Birdsall v. Coon, 157 Mo.App. 439; Berberet v. Meyers, 144 S.W. 824. (2) The lumber in controversy lying as it did scattered about over the Roberts farm was personal property and did not pass to appellants by the deed conveying the real estate, and hence the court erred in appellant's favor in giving declaration of law number 3. 13 Cyc. 641-2. (3) There was no sale of the lumber from Roberts to Crow and Worley. There was no agreement as to amount or kind of lumber and no agreement as to price; and hence, no sale. Tiffany on Sales, p. 1; Greer v. Bank, 128 Mo. 201; Whedon v. Ames, 28 Mo.App. 243. (4) The transfer of the lumber from Roberts to Abernathy constituted a valid and binding sale of the property. Hackley v. Cooksey, 35 Mo. 398; 35 Cyc. 47-8. (5) Roberts was in possession of the lumber at the time of the sale to respondent and if the lumber had been previously sold to appellants that sale was void as to respondent. R. S. 1899, sec. 3410.
--By warranty deed dated October 28, 1910, one Roberts and his wife conveyed to plaintiffs one hundred and sixty acres of farm land in Butler county for the expressed consideration of $ 4500 and $ 2600 in incumbrances to be paid by the said plaintiffs.
At and prior to the time this deed was executed the grantor had lumber at various places on his farm; some of it under cotton that was piled up out in the field, some piled in or about a hay shed in a field where baled hay was stacked, and some scattered around at various other places on the farm.
One of the plaintiffs says that when he was negotiating with Roberts for the purchase of the farm that he said to him that it was his (plaintiff's) understanding that this lumber should go with the farm, to which Roberts assented. Roberts says that he had no such conversation but he claims to have sold the lumber to the defendant, and the defendant maintains his defense on the theory of such purchase. The plaintiffs did not record the deed conveying the land to them for some time after the sale was made and there is testimony tending to prove that the former owner, Roberts, remained in apparent possession of both the land and lumber.
Soon after the land was purchased by plaintiffs the defendant hauled some of the lumber off of the farm to his own place of residence, about one-half of a mile therefrom, and claims to have taken none of it that was about the hay shed or the cotton. The defendant, according to his testimony and the testimony of Roberts and a merchant, purchased the lumber from Roberts and paid for it by having the merchant, to whom Roberts was indebted, agree to credit Roberts and charge defendant for the purchase price thereof. The credit and charge was not actually made on the books of the merchant but the agreements were such between these parties as would necessarily relieve Roberts from his obligation to the merchant and bind the defendant to pay the merchant, thus constituting a sufficient consideration for a sale by Roberts to the defendant.
As soon as one of the plaintiffs ascertained that the defendant had hauled the lumber away, he had a conversation over the telephone with defendant about it, which he relates as follows:
And thereupon this suit, in which plaintiffs seek to...
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