Gregmoore Orchard Co. v. Gilmour.

• Decision Date: 06 November 1911
• Citation: 140 S.W. 763,159 Mo. App. 204
• Parties: GREGMOORE ORCHARD CO. v. GILMOUR.
• Court: Missouri Court of Appeals

140 S.W. 763

159 Mo. App. 204

GREGMOORE ORCHARD CO. v. GILMOUR.

Springfield Court of Appeals. Missouri.

November 6, 1911.

1. CORPORATIONS (§ 422) — ACTS OF OFFICERS — PERSONAL TRANSACTIONS.

A statement, made by the vice president of a corporation to defendant that he was the owner of certain property of the corporation subsequently levied on and sold to defendant as the property of such officer, was not binding on the corporation; it being a representation in the officer's individual interest, adverse to the corporation.

2. CORPORATIONS (§ 428) — KNOWLEDGE OF OFFICER — PRIVATE TRANSACTIONS.

Knowledge which comes to an officer of a corporation through his private transactions, and beyond the range of his official duties, is not notice to the corporation, though the officer obtaining the knowledge is at the time the corporation's managing agent.

3. CORPORATIONS (§ 428) — NOTICE — SERVANTS.

Notice to a mere employé of a corporation, neither a stockholder nor the general agent, is not notice to the corporation.

4. ESTOPPEL (§ 94) — SALE — ACQUIESCENCE.

In general, one who stands by at an execution sale when his property is being sold as that of another, and makes no objection, but permits purchasers to buy, believing that the property belongs to the debtor, will be estopped to claim the property against the purchaser.

5. CORPORATIONS (§ 425) — SALE OF PROPERTY — ESTOPPEL.

That a servant of plaintiff corporation pointed out certain property belonging to plaintiff to a constable to be levied on as the individual property of the corporation's vice president, against whom the constable had a writ, and then sent word to such vice president that the property was about to be levied on, and that the corporation did not attend the sale or cause notice to be given of its ownership of the property, was insufficient to establish a prima facie case that the corporation was estopped to claim the property as against the purchaser, in the absence of proof that the corporation's servant knew that the property was

being levied on as that of the vice president, and had authority from the corporation to act as he did.

6. ESTOPPEL (§ 94) — SALE — CLAIM OF PROPERTY — ESTOPPEL.

A person is not estopped to claim title to property sold on execution as the property of another because he failed to attend the sale and cause notice to be given to the purchaser.

7. TRIAL (§ 253) — INSTRUCTIONS.

In replevin by a corporation to recover property sold on an execution against its vice president and general manager, an instruction that, if the latter by his declarations led the officers and purchasers at the sale to believe the property was his own, the jury should find for defendant, was erroneous as ignoring the question whether such officer, in making the declarations, acted for himself and against the corporation, or in the performance of a duty required of him in his official capacity.

8. TRIAL (§ 252) — INSTRUCTIONS — EVIDENCE.

Instructions hypothesizing facts of which there is no evidence are erroneous.

9. REPLEVIN (§ 91) — INSTRUCTIONS.

In an action by a corporation to recover personal property sold on an execution for the individual debt of its general manager, an instruction that, if C. was manager of plaintiff corporation and B. was plaintiff's agent, then their acquiescence, silence, conduct, knowledge, acts, declarations, and statements, if any, or of either of them, in relation to the ownership, levy, and sale of the property, were the acts, conduct, knowledge, silence, acquiescence, and declaration of plaintiff, and that it was bound by the same, was erroneous.

10. EXECUTION (§ 275) — SALE — TITLE — VALID JUDGMENT.

Where a sale under an execution is relied on as a source of title, the claimant must show a valid judgment as well as a valid execution.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by the Gregmoore Orchard Company against J. T. Gilmour. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

M. E. Morrow, for appellant. J. L. Van Wormer and J. N. Burroughs, for respondent.

GRAY, J.

This action was commenced by a Missouri corporation to recover the possession of certain personal property, consisting of office furniture and farm tools, which plaintiff had on its farm in Howell county, and claimed to be the owner thereof. The home office of the corporation at the times mentioned herein was in St. Louis, and John Moore was its president and George Currier its vice president. Some time prior to September 6, 1910, an execution was issued on a judgment for $50, alleged to have been rendered by a justice of the peace, in favor of John Soots, and against said Moore and Currier. Under this execution the constable levied upon and sold the property in controversy as the property of said Currier and Moore, and the defendant herein purchased the same at such sale. The fact that the property at one time belonged to plaintiff is not disputed, and the main question in this case is whether plaintiff is estopped by its knowledge and conduct from asserting title to the property. The evidence shows that plaintiff owned a farm in Howell county, and the personal property in controversy was used on the farm. One Billings was in charge of the property for plaintiff; but, if he had any authority except to use and care for the property as the servant of plaintiff, it was not shown at the trial. The officers of the corporation testified that Billings had no authority to dispose of or to make any statements relating to the ownership of the property. The evidence which respondent claims supports the estoppel theory is, in substance, as follows: The constable who had the execution testified that, when he went to make the levy, he found Billings in charge; that Billings told him he thought he could settle the matter if he could see Currier; that he left the property in Billings' charge until the latter could communicate with Currier; that he again saw Billings, who informed him he had been unable to see Currier, and thereupon he demanded of Billings the amount of the execution, and Billings replied he did not have the money, whereupon he demanded property, and Billings said to him: "All right, I will show you where there is property," and he did so. The defendant testified that some time previous to the sale Currier told him he owned all the property and wanted to get the judgment against him settled. John Soots, the plaintiff in the execution, testified that he saw a letter from Currier to Billings in which Currier claimed he had bought the property. We gather from the record that other persons bought some of the property that was sold at the constable's sale, and the same was replevined in a suit before a justice of the peace, and Currier was a witness. The testimony shows at such trial Currier admitted that he had written the letter to Billings, but stated that the trade was never consummated. John Evans testified that, about the time the constable first levied on the property, he received a message from Billings for Currier that the property was about to be attached, and that he communicated the same to Currier, who said that it was corporation property. The cause was tried before a jury, resulting in a judgment in favor of the defendant, from which the plaintiff appealed to this court.

The main question relates to the sufficiency of the evidence to authorize the court to submit the question of estoppel to the jury. The property was on the farm of the plaintiff and in its possession. At that time Currier, the vice president, told the defendant herein that he had bought the property of the corporation.

It is claimed by the respondent that this was notice to the corporation that Currier was claiming to have purchased its property. In making this declaration, Currier was not representing the corporation, but his own individual interests, and the declaration was adverse to the interests of the corporation.

It is well settled in this state that knowledge which comes to an officer of a corporation, through his private transactions, and beyond the range of his official duties, is not notice to the corporation. This is the rule, though the officer obtaining the knowledge was, at the time, the managing agent of the corporation. Benton v. German-American National Bank, 122 Mo., loc. cit. 339, 26 S. W. 975, and authorities there cited; Investment Co. v. Bruce, 132 Mo. App. 257, 111 S. W. 888; Bank v. Froman, 129 Mo. 427, 31 S. W. 769; Bank v. Lovitt, 114 Mo. 519, 21 S. W. 825.

In Benton v. Bank, supra, the court said: "The law is well settled that, when an officer of a corporation is dealing with it in his individual interest,...