Hargadine-McKittrick Dry-Goods Co. v. Warden

• Citation: 151 Mo. 578,52 S.W. 593
• Parties: HARGADINE-McKITTRICK DRY-GOODS CO. v. WARDEN.
• Decision Date: 14 July 1899
• Court: United States State Supreme Court of Missouri

52 S.W. 593

151 Mo. 578

HARGADINE-McKITTRICK DRY-GOODS CO. v. WARDEN.

Supreme Court of Missouri, Division No. 2.

July 14, 1899.

ASSIGNMENTS FOR BENEFIT OF CREDITORS — ELECTION OF REMEDIES — PLEADINGS — APPEAL — WAIVER OF ERROR.

1. Plaintiff sold and delivered store goods to one who shortly afterwards made an assignment for creditors. A few days after the assignment, plaintiff brought replevin, and took possession of the goods which could be found and identified. Plaintiff then presented to the assignee his claim for the price of all of the goods sold, which was disallowed. Held, that the bringing of replevin constituted an election of remedies, which, though not precluding plaintiff from dismissing the replevin suit and instituting his money claim, prevented him from presenting his money claim and having it allowed while the replevin suit was pending; and the fact that plaintiff dismissed the replevin suit after the disallowance by the assignee of his money claim could not affect the correctness of such disallowance.

2. In proceedings before an assignee for the benefit of creditors for the allowance of a claim, no technical pleadings are required.

3. The sufficiency of a pleading to present a certain issue cannot be urged on appeal, where the parties tried such issue in the lower court without objection.

Appeal from circuit court, Barton county; D. P. Stratton, Judge.

Action by the Hargadine-McKittrick Dry-Goods Company against Allen Warden, assignee of Abe Keller. From a judgment for plaintiff, defendant appealed to the Kansas City court of appeals, which reversed the judgment. The case was transferred to the supreme court on a certificate of one of the judges that he deemed the decision in conflict with a prior decision of the supreme court. Judgment of court of appeals affirmed.

The following is the opinion of the Kansas City court of appeals (Gill, J.):

"In February and March, 1894, Abe Keller, who was then a dry-goods merchant at Lamar, Mo., purchased of plaintiff, a corporation doing business at St. Louis, goods to the amount of $1,532.34. On April 3, 1894, Keller made a voluntary assignment for the benefit of his creditors, and Warden became assignee, and took possession of the entire stock of goods belonging to the Keller store at Lamar, among which were the goods bought from the plaintiff, or such of them as were yet unsold. On April 14, 1894, plaintiff instituted an action in replevin against Keller and Warden for the recovery of the goods composing the bill of $1,532.34 before mentioned; and on the writ therein issued the sheriff took from the assigned stock such as could be found and identified as belonging to that bill, amounting to about $900 in value, and turned the same over to plaintiff, who subsequently sold them to another party and appropriated the proceeds. The 5th day of June following was the time set by the notice of the assignee to hear and allow claims; and notwithstanding the former commencement of the action to recover the goods, and which suit was still pending, the plaintiff on that day presented its sworn account of $1,532.34 for goods sold and delivered, and asked the assignee to allow the same. The assignee refused to allow the claim, and plaintiff appealed to the circuit court, where the case was heard by the court February 7, 1895, and judgment rendered in plaintiff's favor, allowing its claim for the full amount and interest. As already stated, when the plaintiff's claim was presented to and heard by the assignee, June 5, 1894, the action theretofore commenced by the plaintiff to recover the goods was still pending, and continued so until it was called for trial December 28, 1894, when plaintiff dismissed it. At the date of dismissal the defendant assignee requested the court to assess his damages, which was done, but not, however, until February 11, 1895, when, on hearing the evidence, the court found the damages to be $880.94, for which the defendant had judgment. How this matter, occurring February 11, 1895, got into the record of this case, when the final judgment was rendered February 7th, — four days before, — is difficult to understand.

"In our opinion, there is no principle of law that will sustain the judgment of the lower court. The assignee was right in rejecting plaintiff's claim, and the circuit court should have sustained his judgment. Although our supreme court, by its late decision in Johnson-Brinkman Commission Co. v Missouri Pac. Ry. Co., 126 Mo. 344, 28 S. W. 870, has materially modified the doctrine of election, as it relates to a choosing between inconsistent remedies, I take it that there is something of it left, — sufficient, it seems, to justify the action of the assignee in declining to allow plaintiff's claim when it was presented on June 5, 1894. Let us observe the attitude of this plaintiff at that time. A few months before that, and a short time prior to the assignment, the plaintiff had sold to Keller a lot of goods, and which the vendee had taken into his store at Lamar. A few days after the assignment, plaintiff appears, and (doubtless on the charge of Keller's fraud, or the like) brings replevin, and takes the goods it had sold from the possession of the assignee, thereby giving notice of a rescission of the contract of sale, and of its intention to reclaim the property. The goods, or at least a large portion of them, were by this means taken back into plaintiff's custody, and it then sold them. And then — having repudiated the sale, and having, through the instrumentality of the replevin writ, repossessed itself of the goods — it appears before the assignee's court, and asks an allowance of its entire...