Ewart v. Nave-McCord Mercantile Company

• Decision Date: 09 July 1895
• Citation: Ewart v. Nave-McCord Mercantile Company, 31 S.W. 1041, 130 Mo. 112 (Mo. 1895)
• Parties: Ewart, Interpleader, Appellant, v. Nave-McCord Mercantile Company
• Court: Missouri Supreme Court

31 S.W. 1041

130 Mo. 112

Ewart, Interpleader, Appellant, v. Nave-McCord Mercantile Company

Supreme Court of Missouri, First Division

July 9, 1895

Appeal from De Kalb Circuit Court.

Affirmed.

S. G Loring for appellant.

(1) The court erred in refusing the instruction prayed for by interpleader. Under the law, Ewart immediately became the absolute owner of said undivided one half of said stock of goods; Meek had no interest therein on the thirteenth day of January, 1888, that was liable to be seized, either under attachment or execution. Jones on Chattel Mortgages [2 Ed.] sec. 699; Jackson v. Cunningham, 28 Mo.App. 354; Barnett v. Timberlake, 57 Mo. 499; Sheble v Curdt, 57 Mo.; Robinson v. Campbell, 8 Mo. 366; King v. Bailey, 8 Mo. 240; Lacy v. Gibony, 36 Mo. 320. (2) There is no evidence in the case that the partnership existing between Meek and Atterbury was other than that at will. The execution of the mortgage to Ewart, and an immediate breach of the conditions, and especially upon his taking possession of the mortgaged property, operated as an absolute dissolution of the firm of Meek & Atterbury. Lindley on Partnership [Ewell, 2 Ed.], bottom page 1280. (3) The ordinary creditors of a firm have no lien on the property of the firm before obtaining judgment and execution, so as to be able to prevent it from parting with that property to whomsoever it chooses. 1 Lindley on Partnership [Ewell, 2 Ed.], side page 335. (4) But can only be subrogated to the lien of the parties, and are therefore without remedy when such lien has been waived by them. Kirkpatrick v. Flannegan, 106 U.S. 648; Case v. Beauregard, 99 U.S. 119.

Kendall B. Randolph for respondent.

The record shows that the supreme court has no jurisdiction of the cause, for the reason that the amount involved is less than $ 2,500.

Macfarlane J. Barclay, J., in the result.

OPINION

Macfarlane, J.

On the fourteenth day of January, 1888, respondent, a corporation, commenced a suit by attachment in the circuit court of DeKalb county against Green Atterbury and William L. Meek as copartners under the name and style of Meek & Atterbury. On the same day a stock of goods was levied upon under the writ of attachment issued therein. At the October term of said court appellant filed an interplea in said suit. At the April term, 1893, an amended or supplemental interplea was filed, by which interpleader claimed the property so levied upon by the sheriff. Respondent answered the interplea denying the ownership of the goods by interpleader.

It appeared by the evidence on the trial that in 1885 Meek bought of one Dixon a half interest in a stock of goods owned by said Dixon and one Lipscomb and gave his notes for a portion of the purchase money. Dixon was at the time indebted to the interpleader to whom the notes were assigned in settlement of that indebtedness. During the same year Lipscomb sold his interest in the goods to Atterbury. Thereafter a mercantile business was carried on by Meek & Atterbury, each having a half interest therein. On the twenty-third day of October, 1886, Meek executed and delivered to interpleader a note for $ 2,538, the amount then due on the notes previously given by Dixon. The original notes were canceled, and this new note was given in lieu of them.

On the eleventh day of January, 1888, in order to secure this note, Meek executed and delivered to interpleader a mortgage purporting to assign his half interest in the stock of goods then in the business of said firm. The deed contained the condition that "in case default was made in the payment of the debt above mentioned, or any part thereof, or of the interest due thereon, on any day when the same ought to be paid, then the whole sum shall, at the election of the said James Ewart, become immediately due and payable.

The deed contained this further provision: "The property hereby conveyed to remain in my possession until default be made in the payment of said debt and interest, or some part thereof. Until default be made in the payment of the aforesaid note, the said party of the first part is to remain and continue in the quiet and peaceable possession of said goods and chattels, and in the full and free enjoyment of the same, and, until demand be made, the possession of the party of the first part, Wm. L. Meek, shall be deemed and taken as the possession of, and as agent and servant for the sole and exclusive benefit and advantage of his principal, the said James Ewart. The said party of the first part, the said Wm. L. Meek, is to have the right to sell the said property in the ordinary course of retail trade, and shall account for and pay over to the said James Ewart, all the proceeds of such sale on and in payment of said note, the said James Ewart retaining to himself the right to take possession of said property at any time he shall see fit. Upon taking possession of said property, or any part thereof, either in case of default, or as above provided, the said James Ewart, or his legal representative, may proceed to sell the same, or any part thereof, either at said store, in the ordinary course of the retail trade, or may sell at public auction to the highest bidder, for cash, at said store, in the city of Maysville, county of De Kalb, and state of Missouri, first having given twenty days' notice," etc. The deed was duly acknowledged and recorded on the day of its execution.

On the next day, January 12, 1888, the said Atterbury executed a deed of trust, purporting to assign his individual half of the goods to E. S. Lowe as trustee to to secure certain individual indebtedness of himself amounting to about $ 2,000. This deed contained in substance, the same conditions and provisions as the one made by Meek, and was also duly acknowledged and recorded. No actual fraud in the execution of the deed of trust was shown.

Interpleader testified that, after the...