Dowell v. Taylor

• Decision Date: 06 June 1876
• Citation: 2 Mo.App. 329
• Parties: J. H. DOWELL et al., Respondents, v. PHILIP C. TAYLOR et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 329

J. H. DOWELL et al., Respondents,

v.PHILIP C. TAYLOR et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 6, 1876.

1. Where a lot of bagging in a warehouse was purchased, paid for, set apart to the purchaser, and marked with his name, the transfer of ownership was complete, notwithstanding a refusal by the vendor's clerk to allow a removal from the warehouse until the return of his absent employer-- especially when it appears to have been a constant practice of the vendor to keep bagging on storage, for purchasers, after having sold it to them.

2. Under such circumstances a replevin suit by the purchaser is no evidence to disprove his possession and ownership, in favor of a seizure under replevin by a third party against the vendor. The purchaser's possession and ownership may be complete, as against a stranger, although a subject of controversy between him and his vendor.

3. The statutory bond in a replevin proceeding is no protection to the officer against the claims of persons having no interest in the controversy. The officer seizing the property of a stranger, and delivering it to the plaintiff, does so at his peril.

4. The plaintiff in a replevin suit is jointly liable with the officer for a trespass committed in executing the process.

APPEAL from St. Louis Circuit Court.

Affirmed.

M. B. Jonas, for appellants, cited: Coleman v. Roberts, 1 Mo. 68, 97; Lungstrass v. German Ins. Co., 48 Mo. 201; Nesbit v. Drew, 17 Ala. 379; Strong et al. v. Gregory, 19 Ala. 146; Hamner, Admr., v. Smith, 22 Ala. 433; Stimpson v. Reynolds, 14 Barb. 506; Shipman v. Clark, 4 Denio, 446; Crocker on Sheriffs (2d ed.), ch. 43, pp. 382, 865; 1 Greenl. on Ev. (9th ed.), 247, 248, 171, 172, and authorities cited in note 1; 1 Wag. Stat., ch. 35, art. 2, p. 281, par. 10; Claflin et al. v. Rosenberg, 42 Mo. 439; Lesem et al. v. Hereford et al., 44 Mo. 323; 1 Pars. on Con. 6; Wag. Stat. 1024, sec. 4; Andrews v. Lynch, 27 Mo. 167; Syme v. Steamboat Indiana, 28 Mo. 335; Ivory v. Carlin, 30 Mo. 143.

Farish & Griffin, for appellants.

Given Campbell, for respondents, cited: Bradley v. Holloway, 28 Mo. 150; The State v. Moore, 19 Mo. 369, and 21 Mo. 163; The State v. Shacklett, 37 Mo. 285; Commonwealth v. Stockton, 5 Mon. 193; Cammack v. Commonwealth, 5 Binn. 184; Stimpson v. Reynolds, 14 Barb. 508; Dameron v. Williams, 7 Mo. 141; Canfax v. Chapman, 7 Mo. 173; Perrin v. Claflin, 11 Mo. 15; Page v. Freeman, 17 Mo. 42; Allreed v. Bray, 41 Mo. 484; McManus v. Lee, 43 Mo. 206; Murphy v. Wilson, 44 Mo. 313.

LEWIS, J., delivered the opinion of the court.

This is an action of trespass for the taking of 111 half-rolls of jute bagging, by defendant Taylor, as sheriff, and defendant Scherck, as plaintiff in a replevin proceeding against George R. Robinson & Co. Plaintiffs obtained judgment in the Circuit Court for $721.50, from which the defendants appealed.

It appears that, on November 5, 1874, plaintiffs purchased from Robinson & Co., and paid for at the time, 200 half-rolls of bagging, part of which they hauled away, so that, on November 11th, there remained in Robinson & Co.'s warehouse 111 half-rolls of the lot. On that day plaintiff Dowell, with his clerk, went to the warehouse, and with the consent and coöperation of the agent in charge, and the warehouse porter, under his direction, set apart 111 half-rolls as the remainder of plaintiffs' purchase, and marked them with tags bearing the plaintiffs' name. It was then declared that these were the plaintiffs' property, and that, if a loss by fire should occur, indemnity must be looked for under the plaintiffs' insurance policy. The agent, however, objected to plaintiffs' removing the bagging from the warehouse until after Mr. Robinson's return from a trip to Kentucky. This, he said, was in accordance with his instructions, and because he did not wish Mr. Robinson to find, on his return, so little left in store. On the same day, at a later hour, the defendant Scherck, holding a warehouse receipt of Robinson & Co. for 120 half-rolls of bagging not hitherto set apart or identified, and having instituted a replevin suit therefor against Robinson & Co., and given bond in due form, directed the sheriff, defendant Taylor, to seize the same lot which had been set apart to plaintiffs. The sheriff was about to do so when, upon the representations of Dowell and others, he became satisfied that the bagging was not then in the possession of Robinson & Co., against whom the order of delivery was directed, but was in the actual possession of Dowell & Co. He thereupon declined to execute the order. On the following day the plaintiffs, Dowell & Co., instituted a replevin suit against Robinson & Co., to obtain possession of their bagging, which was represented by their affidavit, in due form, to be in Robinson & Co.'s possession. The sheriff, finding in this affidavit a contradiction of the plaintiffs' previous representations, and a sufficient showing that the property was really held by Robinson & Co., considered it his duty to execute upon it the first order of delivery, being that in favor of defendant Scherck. He therefore seized the bagging, and delivered it to his co-defendant in this suit--plaintiffs, in the meantime, asserting their title, and protesting against the act in every form of notice which the occasion required.

The cause was tried before the court, sitting as a jury. Declarations of law, given for the plaintiffs, were to the general effect that if the plaintiffs had purchased the bagging, and had it set apart and delivered to them, and if, while it was in their possession, or in that of their bailees, the defendants deprived them of their said property, under a writ of replevin against Robinson & Co., the one acting as sheriff and the other as plaintiff in such writ, directing and assisting the execution thereof, and the defendants, upon plaintiffs' demand, refused to restore said property, then the plaintiffs were entitled to recover. Defendants asked for thirteen instructions, variously amplified, which were refused. That they were properly refused would result from an application of the reasoning which here follows:

1 Was there a complete delivery of the bagging to plaintiffs, so that they were invested with absolute ownership at the time of the seizure? Defendants insist that there was not, because the agent of Robinson & Co., when the rolls were set apart and marked, required that they should remain in the warehouse until Mr. Robinson's return to the city But the evidence clearly shows that this was...