Eisenberg v. Nelson

• Decision Date: 07 November 1922
• Docket Number: No. 17595.,17595.
• Parties: EISENBERG v. NELSON.
• Court: Missouri Court of Appeals

247 S.W. 244

EISENBERG v. NELSON.

No. 17595.

St. Louis Court of Appeals, Missouri.

November 7, 1922.

Rehearing Denied January 30, 1023.

Appeal from Circuit Court, Lewis County; James A. Cooley, Judge.

"Not to be officially published."

Action by Henry W. Eisenberg against Bert L. Nelson. Judgment for plaintiff, and defendant appeals. Affirmed.

Lewis O'Connor and Eugene Nelson, both of Hannibal, Hilbert & Henderson, of Monticello, O. C. Clay, of Canton, and A. F. Haney, of Canton, for appellant.

Hilbert & Hilbert, of Canton, for respondent.

ALLEN, P. J.

This is an action fur the alleged conversion of certain corn. The petition alleges that on the _________ day of November, 1919, plaintiff was "the owner of and possessed of" 2926/7 bushels of corn of the value of $366.08; that "afterwards, to wit, on the ______ day of November, 1919, said corn came into the possession of defendant, who then and there unlawfully converted to his own use and disposed of the same," to plaintiff's damage in the sum of $366.08, for which sum, with interest, judgment is prayed.

The answer is a general denial.

The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $302, and the case is here on defendant's appeal.

The record shows that in November, 1919, plaintiff, a farmer residing near Taylor, Mo., agreed to sell to one Nunn a carload of corn to be delivered into a freight car which Nunn had procured and caused to be placed on a track at Taylor. Plaintiff placed six wagonloads of corn in this car on and prior to Saturday, November 22, 1919. On the afternoon of that day, Nunn sold, or agreed to sell, the carload of corn to the defendant, Nelson. No more corn was put into the car by plaintiff. Defendant shipped the corn thus put into the car by plaintiff, having put other corn with it, sold the same, and paid Nunn therefor. And by this action plaintiff seeks to hold defendant liable as for the conversion of the said six wagonloads of corn.

Plaintiff testified that the agreement between him and Nunn was that the latter was to pay for the corn before moving it from Taylor, and in this he is corroborated by the testimony of his son. Plaintiff's further testimony is that having put the six wagonloads of corn into the freight car, he met defendant in Taylor the following Monday afternoon, November 24, 1919, before 2 p. m.; that defendant said that he had bought from Nunn the corn which plaintiff had sold to Nunn, and insisted that plaintiff finish delivering the corn to complete the carload. Plaintiff testified that he therefore said to defendant:

"That is my corn until it is paid for, and I warn you not to take the corn until it is paid for."

That defendant replied that he would pay Nunn for the corn and plaintiff would have to look to Nunn for his money. That plaintiff thereupon told defendant that the corn must not be moved until paid for, that no other corn was to be put into the car until defendant settled with him for the corn, and that he would hold defendant responsible for the value of the corn.

And plaintiff's further testimony is that he did not continue loading the corn Monday forenoon because of lack of men; that he was on his way to get help when he met defendant, but after his conversation with defendant he declined to load any more corn into the car.

A Dr. O'Neill was with plaintiff at the time of the conversation between plaintiff and defendant, mentioned above. His testimony corroborates that of plaintiff as to what occurred, and places the time of the conversation at about 1:30 p. m.

Nunn testified, in defendant's behalf, that when he bought the corn from plaintiff nothing was said as to how it was to be paid for; that he sold the carload of corn to defendant Saturday afternoon, and the following Monday morning defendant notified him that plaintiff was not loading corn into the car; that he thereupon saw plaintiff, and the latter said that he was not going to deliver any more corn, because corn was going up and he was going to get more money.

One Waterman testified that he was present when Nunn bought the corn from plaintiff, and that "nothing was said at that time about the pay." Plaintiff's testimony, in rebuttal, however, tends to show that Waterman could not have heard the conversation.

Defendant testified that he contracted with Nunn on Saturday afternoon, November 22d, for the purchase of the carload of corn, at which time but six wagonloads were in the car; that Monday morning he telephoned Nunn asking him why the Eisenberg corn was not coining, and that Nunn went to see plaintiff about it; that after again hearing from Nunn he (defendant) finished loading the car with other corn and shipped it out that day in freight train leaving Taylor about 2 p. m.; that the conversation between him and plaintiff that afternoon, mentioned above, occurred about 4 o'clock, after the car had gone. He denied that plaintiff told him that Nunn's agreement with plaintiff was that the corn was to be paid for before it was moved from Taylor, but he admitted that plaintiff said that he expected him (defendant) to pay for the corn. Defendant testified that he subsequently paid Nunn for the corn, about December 1st of that year.

It appears that the bill of lading for the car was dated November 24th, but the waybill was signed November 25th; and the testimony of the railway station agent is inconclusive as to whether the car left on the 24th or the 25th.

The first point urged by appellant for a reversal is that the petition wholly fails to state a cause of action. The ground for this assignment of error is that the petition does not allege that plaintiff was in possession or entitled to the possession of the corn at the time of the alleged conversion, and for that reason wholly fails to state a cause of action. in conversion. While the petition does not . directly allege that plaintiff was entitled to the possession of the corn at the time of the alleged conversion, it is alleged that on a. prior day plaintiff was "the owner and possessed of" the corn, and by inference and intendment the petition may now be taken as charging that plaintiff's title, with the consequent right tc possession, continued up to the time when, it is alleged, the conversion occurred. We think that the petition, after verdict, is sufficient to support the judgment in plaintiff's favor. See Twentieth Century Machinery Co. v. Excelsior Springs Mineral Water & Bottling Co., 273 Mo. 142, 200 S. W. 1079; Warnick v, Baker, 42 Mo. App. 439.

It is urged that the trial court erred in overruling defendant's demurrer to the evidence. This insistence proceeds upon the theory that the sale by plaintiff to Nunn was a conditional sale, within the provisions of sections 2282, 2284, Rev. Stat. 1919, and that the condition, viz. that the corn was not to be moved until paid for, was void under these statutes, not being evidenced by a writing executed, acknowledged, and recorded as provided in cases of mortgages of personal property. On the other hand, respondent contends that the evidence as a whole shows that the transaction between plaintiff and Nunn was intended to be a cash sale; payment to be made upon the completion of the delivery of the corn into the car and before the car was moved.

Touching this matter we need only say that if the sale was a conditional sale, then, had delivery been completed so as to consummate the sale and vest title in the purchaser, Nunn, subject to be defeated by his failure to pay the purchase price before the car moved, such condition would not have been invalidated by these statutes, as to the defendant, unless defendant was a purchaser in good faith. See sections 2282, 2284, supra. Much of the testimony below was directed to the question of notice to defendant of plaintiff's rights under the contract said to have been made by him with Nunn. It is unnecessary to discuss this evidence in detail, for there is abundant evidence that defendant received notice of plaintiff's rights in the premises prior to shipping and disposing of the corn, and long prior to his payment of the purchase price to Nunn. It is sufficient to prevent his being a purchaser in good faith that he received notice prior to the payment of the purchase price. See 24 R. C. L. 381, § 008; Young v. Kellar, 24 Mo. 581, 7 S. W. 293, 4 Am. St, Rep. 405. So far, therefore, as concerns the ruling on the demurrer to the evidence, that ruling below was correct even upon defendant's theory that the transaction between plaintiff and Nunn contemplated a conditional sale.

It may be that the evidence as a whole would support a finding that the contract between plaintiff and Nunn contemplated payment on delivery, such payment to be made when the car was fully loaded and before it was moved; but as to this we need not decide. It is quite clear, we think, from the undisputed facts of this record, that the contract of sale between plaintiff and Nunn had not become consummated, so as to vest title in Nunn, when defendant contracted with the latter to purchase the corn and assumed to exercise acts of ownership over so much thereof as had been loaded into the freight car. That the contract of sale between plaintiff and Nunn remained executory when defendant undertook to purchase the corn from Nunn cannot, we think, be doubted. The general rule is that,...