Harmon v. Morris

• Decision Date: 24 December 1887
• Parties: JOHN P. HARMON, Respondent, v. J. D. MORRIS et al., Appellants.
• Court: Kansas Court of Appeals

28 Mo.App. 326

JOHN P. HARMON, Respondent, v. J. D. MORRIS et al., Appellants.

Court of Appeals of Missouri, Kansas City.

December 24, 1887

APPEAL from Johnson Circuit Court, HON. CHARLES W. SLOAN, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

SAM'L P. SPARKS and A. B. LOGAN, for the appellants.

I. The alleged sale was not accompanied by a delivery of the possession and followed by an actual and continued change in the possession of the property attempted to be sold, and was as to the vendor's existing creditors, void notwithstanding it was in good faith and for value. Claflin v. Rosenberg, 42 Mo. 439; Lesem v Herriford, 44 Mo. 323; Howe v. Taylor, 52 Mo. 392; Bishop v. O'Connell, 56 Mo. 158; Burgert v. Borchert, 59 Mo. 80; Wright v. McCormack, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; State ex rel. v. Merritt, 70 Mo. 275; Mills v. Thompson, 72 Mo. 367; State ex rel. v. Cooper, 79 Mo. 464; Stewart v. Nelson, 79 Mo. 522, 524; Crane v. Timberlake, 81 Mo. 431. An examination of the foregoing cases will disclose that the assailing parties were existing creditors in every case.

II. It follows from the authorities cited under proposition I., that declarations numbered two, three, and four were correct expositions of the law of this case, and should have been given.

III. The uncontradicted testimony showed there had been no such change as was required by law, and the sale was void as to Morelock's creditors, as a matter of law, and the judgment was contrary to the law and evidence.

IV. The court erred in permitting respondent to give oral testimony of the terms of the sale, after it was shown that it had been reduced to writing and such writing still in existence. 1 Greenl. Evid. (Ed. 1866) sec. 50.

O. L. HOUTS, for the respondent.

I. This sale was good as between vendor and vendee. Antecedent creditors cannot question it. Section 2505 does not apply. Worley ex rel. v. Watson, 22 Mo.App. 546; Tufts v. Thompson, 22 Mo.App. 564; Defiance Machine Works v. Trisler, 21 Mo.App. 69. Had the attaching creditors in this case, at the time they attached, purchased the property for value, they would not have been " subsequent purchasers in good faith," for they had notice of respondent's ownership.

II. The court did not err in receiving oral testimony of the terms of the sale. There was no dispute or conflict of evidence as to the terms of the sale. The only issue raised by appellants was as to the delivery of the property, on which the bill of sale threw no light. In the second place, appellants, by their own witnesses, and in cross examination of respondent and his witness, proved the contents of the bill of sale and the terms of the sale, and are not in a position to object. The objection at the trial, furthermore, came too late and after the evidence was in.

III. Respondent submits that the abstract of record filed by appellants does not " set forth so much of the record as is necessary to a full understanding of the questions presented," and, under rule 15 of this court, the appeal should be dismissed.

PHILIPS P. J.

This is an action of replevin. The property in controversy consists of a spring-wagon, two mules, two horses, and one set of wagon harness. The property, on the eleventh day of August, 1886, belonged to one Louis Morelock. On that day, Morelock, being indebted to the plaintiff for about the sum of three hundred and forty dollars, and being indebted to other parties, proposed to sell to plaintiff the above-named property, with other personal property owned by him, in payment of said debt and for cash for the excess; stating at the time that his purpose was, with the balance of the money, to satisfy said other indebtedness. After some negotiation the parties came to an agreement. The whole amount of the purchase money was about eleven hundred dollars. The next day or two, Morelock drove the wagon and horses and mules thereto attached, into the town of Holden, where the plaintiff resided, bringing in to plaintiff some oats included in the purchase so made. Morelock stated to plaintiff: " I brought along a couple of loads of oats and brought the teams, now you can do as you please with them." Plaintiff went out, and looked them over to see if they were the same he purchased, and verbally accepted them. After dinner plaintiff seems to have contracted with Morelock for more oats, and told Morelock to take the teams back, and haul the oats with them to plaintiff. One Roberts, who seems to have been interested in the transaction with plaintiff, owned a farm adjoining that on which Morelock lived; and spoke to Morelock about doing some ploughing thereon for him. Plaintiff consented that Morelock might do this ploughing for Roberts, with said teams, using feed belonging to plaintiff on the premises. Accordingly Morelock returned home with the property, hauled the oats, as agreed, and retained the property in his possession, excepting the spring-wagon, as theretofore, doing the ploughing for Roberts, and also doing some ploughing for a neighbor with the teams.

While the property was in this situation, on the thirtieth day of August, 1886, the defendants, as constable and deputy constable, seized the said property under writs of attachment at the suit of other creditors of Morelock. Whereupon, plaintiff instituted this action in replevin. The cause was tried before the court without the intervention of a jury. The verdict and judgment were for plaintiff. Defendants have appealed.

I. Section 2505, Revised Statutes, provides that, " Every sale made by a vendor of goods and chattels in his possession, or under his control, unless the same be accompanied by a delivery in a reasonable time, regard being had to the situation of the property, and be followed by an actual and continued change of the possession of the things sold, shall be held to be fraudulent and void, as against the creditors of the vendor, or subsequent purchasers in good faith," etc. There is nothing in the record before us to indicate that the trial court based its conclusion on the assumption that said statute applies only to the instance of subsequent creditors. But respondent's counsel defends the judgment on this ground, and cites in support of the position the case of Worley ex rel. v. Watson (22 Mo.App. 553). I am satisfied, on consideration, that so much of the opinion...