Hawley v. Levy

• Decision Date: 09 June 1925
• Docket Number: 5270.
• Citation: Hawley v. Levy, 99 W.Va. 335, 128 S.E. 735 (W. Va. 1925)
• Parties: HAWLEY v. LEVY ET AL.
• Court: West Virginia Supreme Court

128 S.E. 735

99 W.Va. 335

HAWLEY v. LEVY ET AL.

No. 5270.

Supreme Court of Appeals of West Virginia.

June 9, 1925

Submitted March 10, 1925.

Syllabus by the Court.

When the lien of a seller of goods is valid against the creditors of the buyer thereof, at the time the buyer carries the goods upon leased premises, only the interest of the buyer in such goods is liable to distress by his landlord.

In the absence of evidence to the contrary, a contract is presumed to have been executed on the day it is dated.It being shown however, that delivery of the instrument was not made until a later day, it is held, that the contract did not become effectual until the day of delivery.

Error to Circuit Court, Ohio County.

Action by James L. Hawley against W. C. Levy and others, partners doing business as Electrik Maid Bake Shops, and others.Judgment for plaintiff, and defendantsW. C. Levy and others bring error.Reversed.

Milton P. Firestone, of St. Paul, Minn., and McCamic & Clarke, of Wheeling, for plaintiffs in error.

Riley & Riley, of Wheeling, for defendant in error.

HATCHER J.

The dramatis personæ in this litigation are: (1)J. L. Hawley, a landlord, of Wheeling, W.Va., (2)William C. Levy, Allen L Firestone, and Milton P. Firestone, of St. Paul, Minn partners doing business as Electrik Maid Bake Shops, who were the sellers of a bakery equipment under a conditional sales contract to (3)C. R. Nesbitt, who with his partner, Agnes Nesbitt, conducted a business under the name of Electrik Maid Bakery, in a building in Wheeling owned by Hawley.The bakery equipment was seized under a distress warrant issued by the landlord for arrears in rent.The sellers of the equipment claim that it is exempt from the landlord's lien by reason of the lien reserved to them in the sales contract.The sellers seek here a reversal of a judgment in the circuit court of Ohio county in favor of the landlord.

The Nesbitts entered into possession of the Hawley building on April 1, 1923.At a date not shown by the evidence, Levy had some negotiations with C. R. Nesbitt relative to selling him the bakery equipment, which resulted in Nesbitt agreeing as he said "to buy the goods," although he qualified that statement by saying that no contract was then entered into.The bakery equipment was shipped by railroad from St Paul on April 5, 1923.On April 7, 1923, a bank in St. Paul mailed to a bank in Wheeling for collection a draft on C. R. Nesbitt for $1,638.09, accompanied by invoice, bills of lading, and three copies of a contract between Nesbitt and the Electrik Maid Bake Shop.The contract was dated April 6, 1923, on which date it had been signed by the seller.On April 17, 1923, the bakery equipment, consigned to the seller, arrived at the yards of the Baltimore & Ohio Railroad Company at Wheeling, with an order to notify C. R. Nesbitt.On April 19, 1923, Nesbitt signed the contract, paid the draft, received the equipment from the railroad company, and had it all transferred to the leased property, with the exception of a "dough mixer" which was not taken to the rented premises until April 27th.

The written contract dated April 6, 1923, and executed by C. R. Nesbitt on April 19th, was recorded April 27th, in the office of the clerk of the county court of Ohio county.It states that the purchase price of the bakery equipment was $3,750 f. o. b. St. Paul, Minn., of which amount $500 was paid cash at the date thereof, and the balance of $3,250 was to be paid by the buyer as follows: $1,375 was to be paid on a sight draft to be presented with the bill of lading for the equipment, and $1,875 was to be paid in equal monthly installments of $156.25 each.The contract further states that delivery of the equipment was to be made by April 15th; that the title to the equipment should remain in the seller until full payment was made of the purchase price, but that all risk of loss or damage or injury to the equipment should fall on the buyer, after delivery of the equipment f. o. b. St. Paul.

In the petition of the seller, it alleges that $1,422.65 of the purchase price had not been paid.Nesbitt testified that he would not deny the amount alleged due the seller and that his indebtedness on the equipment was "around" those figures.

The landlord makes two contentions, which, as stated by his counsel, are as follows:

"First.The defendant in error, by virtue of the provisions of chapter 93 of the Code, acquired the statutory lien for a year's rent upon the property here in controversy, which must prevail over the claim of the plaintiffs in error as chapter 93 is not repealed, changed, or modified by chapter 99A, known as the Conditional Sales Act.

Second.Even if the rights of the landlord are made subordinate by chapter 99A of the Code, yet the defendant in error must prevail as the contract of sale in this case was made on April 6, 1923, and said contract was not recorded until after the lien of the defendant in error attached, nor was it recorded within ten days after the actual consummation of the sale from Levy to the Nesbitts."Section 11 of chapter 93 of the Code provides that--

"The distress may be levied on any goods of the lessee, or his assignee or under tenant, found on the premises, or which may have been removed therefrom not more than thirty days.If the goods of such lessee, assignee, or under tenant, when carried on the premises are subject to a lien, which is valid against his creditors, his interest only in such goods shall be liable to such distress."

Consequently the rights of the landlord in ...