Hamra Bros. v. Herrell

• Citation: 200 S.W. 776
• Decision Date: 06 February 1918
• Docket Number: No. 2146.,2146.
• Parties: HAMRA BROS. v. HERRELL et al. (FERGUSON, Garnishee).
• Court: Court of Appeal of Missouri (US)

200 S.W. 776

HAMRA BROS. v. HERRELL et al. (FERGUSON, Garnishee).

No. 2146.

Springfield Court of Appeals. Missouri.

February 6, 1918.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Hamra Bros. against Charles Herrell and another, wherein, after judgment for plaintiffs, F. L. Ferguson was garnished. From a judgment for plaintiffs against the garnishee, he appeals. Judgment reversed.

C. G. Shepard, of Caruthersville, for appellant. J. E. Duncan and Sam J. Corbett, both of Caruthersville, for respondents.

BRADLEY, J.

Hamra Bros., merchants of Caruthersville, had a judgment in a justice of the peace court against Chas. Herrell and Jennie Herrell, his wife, on account. Appellant, F. L. Ferguson, on November 3, 1915, "bought," as the term is generally used in such matters, a load of seed cotton brought to Caruthersville by Chas. Herrell. Hamra Bros., execution plaintiffs, caused Ferguson to be garnished. In the justice court judgment went for the garnishee, but on appeal to the circuit court a trial before the court and a jury resulted in a verdict and judgment for the execution plaintiffs; and garnishee, being unsuccessful in a motion for a new trial, duly appealed to this court.

The facts are substantially as follows: Some time prior to the commencement of the garnishment proceedings here involved, execution plaintiffs obtained a judgment against Chas. Herrell and wife on a store account. During the crop season of 1915, Herrell cultivated lands belonging to Chas. Pierce. During a part of that year, if not during the whole year, Herrell lived on the farm a part of which he cultivated. Pierce was to furnish the land, teams, feed, tools, and necessary family supplies; and Herrell was to pay for the supplies out of his part of the crop, which was one-half. While not clear as to how Herrell should pay for the supplies, it seems that Pierce was to take out of Herrell's half the amount of Herrell's account for supplies, and also was to take out the picking, and the remainder of Herrell's half would be turned over to Herrell. This was the second load of cotton marketed from this crop. Herrell some time previous had brought in a load, and sold it, counting it as his own; and this second load he was counting as Pierce's. When Herrell arrived at the "cotton corner" (the place in Caruthersville where cotton is usually taken for bids) with the load of cotton in question, Ferguson, among others, bid thereon. Ferguson told Herrell that if his bid was accepted to take the cotton to a certain gin, and gave Herrell a ticket telling the manager of the gin how to gin the cotton and mark the bale if Ferguson got it. This was the sum total of the transaction between Herrell and Ferguson as to the bid. Herrell says that after receiving these bids he "bummed around on the streets a long time," and Ferguson gave him the best bid. He took the cotton to the gin designated by Ferguson, thereby accepting the bid made; but did not at the time he started for the gin advise Ferguson that he had accepted his bid. A few minutes after Herrell had driven away from the cotton corner, one of the plaintiffs asked Ferguson if he had bought Herrell's cotton, and Ferguson said to plaintiff:

"I do not know. You can't tell whether you had bought the cotton by bidding on it. There were some other buyers, and they may get it."

Shortly thereafter plaintiffs caused Ferguson to be garnished. When Herrell returned from the gin to Ferguson with his ticket for payment, Ferguson advised him that the execution plaintiffs had served garnishment papers upon him, and offered to pay the balance over the garnishment. Herrell declined to accept this, stating that the cotton belonged to Pierce. Herrell at once notified Pierce, and Pierce immediately appeared upon the scene and insisted that the load of cotton belonged to him. Ferguson declared that he did not want to buy a lawsuit and turned the cotton over to Pierce. All these things happened in a very brief space of time. Pierce sent Herrell to the gin after the cotton which by that time was ginned (perhaps ginned direct from the wagon), and the bale was taken to Pierce's home, and by him afterwards sold. Pierce also got the seed.

Upon these facts Ferguson as garnishee answered the interrogatories as follows:

"First Interrogatory. F. L. Ferguson answers and says, at the time of service of garnishment, I did not have in my possession or under my control any property, money, or effects of the defendants in execution. Second Interrogatory. F. L. Ferguson answers and says, at the time of service of garnishment, did not owe defendant any money, nor does he owe the defendant any money now."

Execution plaintiffs filed denial of garnishee's answer as follows:

"For the denial to the answer of garnishee to the first interrogatory propounded to him, plaintiff says that at the time of the service of summons of garnishment in this cause upon said garnishee, F. L. Ferguson, said F. L. Ferguson did have in his possession and under his control 1,600 pounds of seed cotton of the value of $73.80, the property and effects of the defendants in the execution in this cause, viz. Jennie Herrell and Chas. Herrell, and plaintiffs say that such cotton was either in the possession of said F. L. Ferguson as aforesaid, as the property of said defendants in the execution, or the said defendants had sold said cotton to the said F. L. Ferguson, and at the time of the service of summons in this cause the said F. L. Ferguson had in his possession the value of said cotton belonging to the said defendants, the value of said cotton, to wit, $73.80. For their denial to the answer of said garnishee to the second interrogatory propounded to him, plaintiff says: That, at the time of service of the summons of garnishment upon him in this cause, the said F. L. Ferguson was indebted to the defendants in the execution in this cause in the sum of $73.80 for the purchase price of 1,600 pounds of seed cotton purchased by him from the defendants in execution. And plaintiffs further say that, after the service of summons of garnishment in this cause, the garnishee, F. L. Ferguson, delivered the said cotton back to the said defendants or to some other person, thereby seeking to avoid such garnishment proceedings, or any liability thereon."

Appellant garnishee based his defense upon two theories, either of which would be good if supported by the evidence: (1) That the transaction between him and Herrell was a sale for cash on delivery, and that the title to the cotton would not therefore pass until the purchase price was paid; and that since he was garnished before payment the title to the cotton at the time of the garnishment was not in him, and that the relation of debtor and creditor was not created. (2) That Herrell was a mere cropper of Pierce, and that therefore Herrell and Pierce were tenants in common of the cotton in the nature of joint ownership; and that in such circumstances garnishment would not lie for a debt of Herrell only, and, if it be true that he had possession of the cotton at the time of the service of garnishment, he still would not be liable.

The execution plaintiffs say that, even though the sale be for cash on delivery and that the title would therefore not pass until payment be made, yet at the time of the garnishment Ferguson had in his possession the cotton, which, if Herrell's, would make the garnishee subject to garnishment; and, on the other hand, if the cotton was Herrell's and the title passed before payment, then Ferguson owed Herrell for the cotton and was subject to garnishment. The execution plaintiffs further say that, since the garnishee did not plead in his answers to the interrogatories that Pierce was the owner or part owner of the cotton, he cannot be heard on that defense; but we will deal with this last feature later on. Did the title pass? There is no controversy about the law where the sale is for cash on delivery. If there was ever any question about where the title rests before payment where the sale is for cash on delivery, such has long since been settled in this state. In Johnson-Brinkman Commission Co. v. Central Bank, 116 Mo. 570, 22 S. W. 816, 38 Am. St. Rep. 615, the Supreme Court says:

"As between vendor and purchaser, where the sale of the chattels is a cash sale, the delivery of the thing sold and the payment of the purchase money are concurrent acts, and the former may reclaim his property if the purchase money be not paid according to the terms of the sale, either in the hands of the vendee or of a purchaser with or without notice, of the terms of the sale, and that the purchase money has not been paid, provided the vendor has not waived the cash payment, and has been guilty of no laches or such conduct as would estop him from so doing."

This same language...