J. G. Hutchinson & Co. v. Morris Brothers

Decision Date25 May 1908
Citation110 S.W. 684,131 Mo.App. 258
PartiesJ. G. HUTCHINSON & COMPANY, Appellant, v. MORRIS BROTHERS, Defendant; JOHN F. M. BRASSFIELD, Interpleader, Respondent
CourtKansas Court of Appeals

Appeal from Grundy Circuit Court.--Hon. Paris C. Stepp, Judge.

AFFIRMED.

Judgment affirmed.

Platt Hubbell for appellant.

(1) The trial court erred in refusing to sustain plaintiff's demurrer to the interpleader's evidence. This case cannot be distinguished, on the present record, according to interpleader's own evidence, from the cases of Lowrence v. Barker, 82 Mo.App. 125; Dry Goods Co. v. Brown, 73 Mo.App. 245, 99 Mo.App. 444; Shoe Co. v. Arnold, 82 Mo.App. 7; Harrison v. Min Co., 95 Mo.App. 80; Mfg. Co. v. Troll, 77 Mo.App. 344; Mackler v. Cramer, 40 Mo.App. 382; Case v. Espenschied, 69 S.W. 277; State v O'Neill, 151 Mo. 89. (2) The court erred in admitting hearsay declarations of Charles Morris and Marion Morris. "After a vendor has parted with his property, he has no more power to impress the title by either his acts or his declarations than a mere stranger; such declarations are only hearsay and cannot affect the title of the vendee." Stewart v. Thomas, 35 Mo. 207; Albert v. Besel, 88 Mo. 154, 101 Mo.App. 602.

Hall & Hall for respondent.

(1) Interpleader started to tell about a conversation with Marion Morris about the stock of goods turned over to the interpleader, when plaintiff's counsel said, "I don't think it would be competent." The court said "I expect it is proper." The interpleader then told what Marion said he had told Charles to turn the goods over to interpleader if he didn't show up at the trial down in Kansas. This remark of plaintiffs' counsel was in no sense a valid objection to the evidence as has been many times decided, a few of the cases being here given. Howard v. Brown (Mo.), 95 S.W. 191; Chaffee v. Railroad, 64 Mo. 193; Seligman v. Rogers, 113 Mo. 654; Bank v. Scalzo, 127 Mo. 185; Stark v. Knapp & Co., 160 Mo. 552; Smith v. Dowling, 85 Mo.App. 514; Wibracht v. Annan, 89 Mo.App. 370.

OPINION

ELLISON, J.

--This case was here on former appeal and is reported in 86 Mo.App. 40, where a statement of the case can be found. It is perhaps necessary to state shortly that the plaintiffs, as wholesale merchants, sold to Morris Bros., a partnership composed of Marion and Charles Morris, a bill of goods, for which afterwards they brought an action for the purchase price and sued out an attachment which was levied upon their partnership property. After the sale of the goods by plaintiffs, Marion Morris became indebted to the interpleader Brassfield in the sum of $ 500 in the manner shown by said statement. To secure interpleader from the debt of Marion, Charles executed in the firm name a mortgage on their partnership effects, which interpleader failed to have recorded. The plaintiffs contend that it was agreed between the parties to leave it off the record, but interpleader testified that he thought that he had had it recorded and that it was a mistake on his part in not having it done.

The interpleader claimed that the goods were turned over to him by Charles Morris to pay the debt and that he did not claim by virtue of his mortgage. Marion Morris was not present at the time the mortgage was executed and the interpleader, in order to show that he consented to the sale and transfer of the goods to himself, introduced the statement of witnesses, which consisted of what Charles told them Marion had told him. The cause was reversed on the ground that the evidence was mere hearsay. The court in the opinion used this language: "None of these witnesses pretended that Marion himself had said he authorized the sale." In the brief in that case appellants (the plaintiffs) admitted that it was competent to have proven what the witness himself heard Marion say in reference to the matter. The judgment in the trial court was again for the interpleader.

We have examined the evidence taken at the last trial and we are content with the action of the trial court in refusing a demurrer to the evidence in interpleader's behalf. A careful re-examination of the entire case has left us satisfied with the views heretofore expressed.

At the last trial, as at the first, interpleader endeavored to show that Marion Morris, for whom interpleader had furnished cash bail and which Marion forfeited, had consented that Charles Morris, who was his partner and brother, should turn over to interpleader the stock of goods in controversy as indemnity to the latter. He undertook at the first trial to show such consent by having witnesses state, not what they had heard Marion say, but what they heard Charles say Marion had said to him. Plaintiffs objected to such evidence as hearsay, but it was received by the trial court and we reversed the case for another trial. As stated above, plaintiffs conceded at that time that the evidence would have been proper had witnesses stated what they themselves heard Marion say as to his consent. But plaintiffs now guard such concession by the qualification that Marion's statements must have been before he and Charles parted with possession and that any statement after the goods had been turned over to interpleader was the statement of a vendor after parting with possession and could not affect the title or right of these plaintiffs as attaching creditors. Plaintiffs now contend for two grounds of objection as arising at the last trial. One, against evidence of what...

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