In re Ozark Cooperage & Lumber Co.

• Decision Date: 03 May 1910
• Docket Number: 100.
• Parties: In re OZARK COOPERAGE & LUMBER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

180 F. 105

In re OZARK COOPERAGE & LUMBER CO.

No. 100.

United States Court of Appeals, Eighth Circuit.

May 3, 1910

George B. Webster, for petitioner.

Frank Kelly, for respondent trustee.

Before HOOK and ADAMS, Circuit Judges, and J. B. McPHERSON, District judge.

HOOK Circuit Judge.

This petition to revise involves the ownership of 245,000 feet of hardwood lumber sawed at mills near Campbell, Mo., belonging to Joseph H. Huggins who was adjudged a bankrupt. The petitioner, the Ozark Cooperage & Lumber Company, claims by purchase from the bankrupt before the commencement of the proceeding in bankruptcy. It is not questioned that the transaction was in good faith, that the petitioner paid a substantial part of the purchase price and that both parties intended the title to the lumber should pass. The narrow question is whether there was such a delivery as is required by a Missouri statute. It is a question of local law. Security Warehousing Co. v. Hand, 206 U.S. 415, 27 Sup.Ct. 720, 51 L.Ed. 1117; Knapp v Milwaukee Trust Co. (March 7, 1910), 216 U.S. 545, 30 Sup.Ct. 412, 54 L.Ed. .. . ; Bankruptcy Act, Sec. 67e, 70a (Act July 1, 1898, c. 541, 30 Stat. 564-566 (U.S. Comp. St. 1901, pp. 3449, 3451)).

The Missouri statute provides that 'every sale made by the vendor of goods and chattels in his possession or under his control, unless the same be accompanied by 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. ' Rev. St. Mo 1899, Sec. 3410 (Ann. St. 1906, p. 1940). This statute has been construed to mean that the change of possession must be open, notorious, and unequivocal, such as to apprise the community or those accustomed to dealing with the party that the property has changed hands, and to prevent him from deriving a false credit from the continuance of an apparent ownership. Claflin v. Rosenberg, 42 Mo. 439, 97 Am.Dec. 336; Lesem v. Herriford, 44 Mo. 325; Stewart v. Bergstrom, 79 Mo. 524; Rice, Stix & Co. v. Sally, 176 Mo. 107, 75 S.W. 398; Rice, Stix Dry Goods Co. v. Sally, 198 Mo. 682, 96 S.W. 1030; Thomas v. Ramsey, 47 Mo.App. 84. In Stewart v. Bergstrom and Thomas v. Ramsey it was held that the mere marking of dots on railroad ties without otherwise indicating a change of dominion or possession was insufficient. In Rice, Stix Dry Goods Co. v. Sally the putting up of a sign reading 'Sarah H. Sally's Store' in connection with other acts was held to satisfy the law.

In the case at bar it appears from the petition to revise, and there is nothing before us to contradict it, that a written contract between the petitioner and the bankrupt made more than a year before the adjudication provided that petitioner was to purchase the lumber sawed at the bankrupt's mills at designated prices for the various kinds and grades. When sawed, the lumber was to be piled or stacked at or near the mills, according to detailed specifications. Twice each month the petitioner was to cause the lumber so piled to be estimated, and each stack was then to be numbered and branded with petitioner's initials '...