Franklin v. Gumersell

• Decision Date: 20 December 1881
• Parties: CELIA M. FRANKLIN ET AL., Respondents, v. W. H. GUMERSELL ET AL., Appellants.
• Court: Missouri Court of Appeals

11 Mo.App. 306

CELIA M. FRANKLIN ET AL., Respondents,

v.W. H. GUMERSELL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 20, 1881.

1. A sale of personalty, to be good against creditors of the vendor, must be accompanied by open and notorious change of possession, within a reasonable time.

2. Where such a change of possession is not effected within a reasonable time, that the delivery is made before the process of the creditor is levied, will not validate the sale.

3. Where goods sold to a salesman in the employ of the vendor remain in the vendor's store, and in the course of trade this stock is replenished through purchases made by the vendor with money turned over to him by the vendee, as proceeds of sales of these goods, an attachment against the vendor may be levied on the new goods as well as on the original stock.

4. In such a case, where there is evidence that purchases made to replenish the stock were made by the vendor in his own name and the goods charged against the vendee upon the vendor's books, an attaching creditor of the vendor, when sued by the vendee for the value of these goods attached, is entitled to use in evidence such portions of the vendor's books as relate to the purchase of the goods and to his dealings with the vendee

5. The testimony of a witness may be read from a bill of exceptions preserved at a former trial whenever, without any fault of the party desiring the testimony, the attendance of the witness cannot be had nor his deposition taken.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

G. M. STEWART and PAUL BAKEWELL, for the appellants: The original transaction of June, 1877, whereby Carabin & Co. attempted a sale to plaintiff of certain of their goods, having been declared void by this court, all that followed as a direct result in pursuance of that transaction was also void as to these defendants. The plaintiff had no better title to the proceeds than to the original goods.-- Martin v. Smith, 1 Dill. 84; Buck v. Ashbrook, 59 Mo. 200. She could not change the title to the goods by changing their character.-- Cheeny v. Gleason, 117 Mass. 557; Small v. Atwood, 1 Young, 507; Thompson v. Bickford, 19 Minn. 17; Spaulding v. Fisher, 58 Me. 411. Defendants had a right to have submitted to the jury all the plaintiff and her agents said and did respecting these transactions, as they are of the res gestæ.-- Singleton v. Mann, 3 Mo. 464; Beardslee v. Steinmesch, 38 Mo. 168; McNeeley v. Hunton, 24 Mo. 281; Bank v. Williams, 46 Mo. 17; Association v. Edwards, 47 Mo. 445. The testimony of Ravold as preserved at the former trial should have been read to the jury.-- Slusser v. Burlington, 47 Iowa, 300; Cook v. Stout, 47 Ill. 530; Johnson v. Sargent, 42 Vt. 196; Clinton v. Estes, 20 Ark. 216; Magill v. Kauffman, 4 Serg. & R. 317; Wright v. Ampsty, 41 Pa. St.--; Noble v. McClintock, 6 Watts, 58; Widder v. City of St. Paul, 12 Minn. 192. The issue was really a trial of the title to the property; and having notice, and being in fact present at the trial, and by her testimony endeavoring to establish her title to this property, she ought to be permitted to try the same issue again. The cases of The State v. Coste, 36 Mo. 437; Strong v. Insurance Co., 62 Mo. 295, and Whittaker v. McCormick, 6 Mo. App. 114, are decisive of this question. The case is res judicata, and the maxim “ interest republicæ ut sit finis litium,” has full application here.McCOMAS & McKEIGHAN, for the respondents: 1. The court committed no error; the case was tried, and instructions given with close observance of the decision of this court in the same case. 2. The books of J. J. Carabin were properly excluded. They contained no declarations of the plaintiff. 3. The question of whether or not the goods purchased subsequent to the original purchase, June 17, 1877, were bought of persons other than Carabin & Co., was fairly submitted to the jury; the jury, by their verdict, decided in favor of the plaintiff; there was evidence tending to sustain the result, and the appellate court will not disturb the opinion of the jury on a question of fact. 4. The question of fraud on the part of the plaintiff and Carabin & Co., was submitted to the jury, and the jury found there was no fraud on the part of the plaintiff. This court will not oppose the verdict of a jury on such a subject, and declare there was. 5. The evidence all shows that the plaintiff paid full value for the goods originally bought; that she paid for all the goods she bought afterwards, and that none of her creditors suffered by the failure of J. J. Carabin & Co. By reason of not being familiar with the statute of delivery, she lost her honest claim to the balance of the stock; but this misfortune does not prevent her from purchasing and owning property unaffected by this statute.

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

This case has been here before. The plaintiff, Celia M. Franklin, claims that defendants unlawfully seized and carried away certain personal property belonging to her, and converted the same to their own use. The defendants, after a general denial, pleaded that they caused the goods to be taken in attachment as the property of Carabin & Co., who were indebted to defendants. The ground of the attachment was a fraudulent conveyance by Carabin & Co. The issue on the plea in abatement in the attachment suit was found for the defendants, who were plaintiffs in that action, the jury finding that the goods in question in this suit had been, by Carabin & Co., fraudulently conveyed to Celia M. Franklin. On the judgment in that action execution issued, under which these goods were sold, and the proceeds applied on the execution. The answer further alleges that Celia M. Franklin testified as a witness in that attachment suit. The reply admits that the issues in the attachment suit were as stated in the answer, and that the levy and judgment were as stated. There was a verdict and judgment for plaintiff in the suit at bar.

1. It appears from the testimony that, in February, 1877, Carabin & Co. opened a store in St. Louis for selling at retail millinery and women's and children's wearing apparel. Plaintiff was one of the saleswomen in Carabin's store. She had come to St. Louis with Carabin and his partner, and had been formerly a co-employee with them in a store in another city. About four months after Carabin & Co. began business in St. Louis, plaintiff, who came to St. Louis with $100 in her pocket, and who was receiving a salary of only $50 a month, bought, according to her statement, of Carabin & Co., the ladies' underclothes and baby clothes in Carabin's shop, for $1,700. She says she paid $1,000 in cash, which money she borrowed from a person in Detroit; and she gave her notes for the balance, and, Carabin & Co. being in want of money, she paid these notes before maturity. The goods were described in a bill of sale and invoice dated June 17, 1877, the date of the alleged sale. On February 2, 1878, Carabin & Co. made an assignment for the benefit of their creditors, and, from the date of the alleged transfer to the day that Carabin & Co. failed, plaintiff, who was then Celia Preston, and who has married her co-plaintiff since these transactions, remained as a saleswoman in the Carabin store, at the same salary, and selling goods for Carabin & Co., as well as those goods which she claims were her own. There was nothing whatever from which an observer could guess that these goods, which she says were hers, were plaintiff's goods and not Carabin's. Plaintiff put no new marks on the goods. As she sold them she turned the money into the Carabin cashdrawer. She had a separate counter for her goods, removed about three feet from the Carabin counter, and in the southeast corner of the shop. She kept the goods which she called her own under this counter. When she bought new goods to replace those that were sold, she bought them, she says, through Carabin & Co., except as to one or two small bills, one of which was originally made out to Carabin & Co. and afterwards made out to her. She says that she kept a memorandum of what money she put in the Carabin cash-drawer for her own sales, and that Carabin ordered her goods for her in New York in his own name. The tags of Carabin & Co. remained on most of these goods up to the time that she removed them when Carabin & Co. failed. Carabin & Co. seem to have charged the goods to her on their books, and to...