Johnson-Brinkman Commission Company v. Central Bank of Kansas City

• Decision Date: 13 June 1893
• Parties: Johnson-Brinkman Commission Company v. Central Bank of Kansas City, Appellant
• Court: Missouri Supreme Court

22 S.W. 813

116 Mo. 558

Johnson-Brinkman Commission Company v. Central Bank of Kansas City, Appellant

Supreme Court of Missouri, Second Division

June 13, 1893

Appeal from the Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Hayward & Griffin for appellants.

(1) The admission of incompetent, irrelevant and immaterial evidence at the trial ought to operate a reversal. (2) Plaintiff parted with the property in and the right of possession to the wheat by the delivery to the Imboden Commission Co. First. With the property: The vendor's intention governs and is shown to have been to pass the property -- (a) By the delivery of the bill of lading. Cunningham v Ashbrook, 20 Mo. 553; Williams v. Evans, 39 Mo 207; Upton v. Cotton Mills, 111 Mass. 446; Freeman v. Nichols, 116 Mass. 309; Carleton v Summer, 4 Pick. 516; Farlaw v. Ellis, 15 Gray 229; Scudder v. Bradbury, 106 Mass. 422; Goodwin v. Railroad, 111 Mass. 487; Hammett v. Linneenan, 48 N.Y. 399; Benjamin on Sales [Bennett's Notes, 1881], 268; Wigton v. Bowley, 130 Mass. 252. (b) By plaintiff's knowledge that Imboden bought to sell again. Smith v. Dennie, 6 Pick. 262; Burbank v. Crookers, 7 Gray 158; Haskins v. Warren, 115 Mass. 514. (c) By bringing an action for the price. Benjamin on Sales [Bennett's Notes, 1881], p. 366, sec. 433; Cahn v. Reed, 18 Mo.App. 115, 126. (d) By accepting the transfer of the office furniture. See, on the general proposition: Ober v. Carson's Ex'rs, 62 Mo. 209; Press Co. v. Stanard, 44 Mo. 71. Second. This was not a conditional delivery. If it were, the statute prohibits a recovery. Revised Statutes 1889, secs. 5178, 5180; Machine Works v. Trisler, 21 Mo.App. 69; Tufts v. Thompson, 22 Mo.App. 564; State to use v. Brew. Co., 32 Mo.App. 276; Coover v. Johnson, 86 Mo. 533; Collins v. Wilhoit, 35 Mo.App. 585; Worley v. Watson, 22 Mo.App. 546; Knoop v. Distilling Co., 26 Mo.App. 303; Van Raalte v. Harrington, 101 Mo. 602. (3) The right of possession was terminated by delivery to Albers. Sigerson v. Kahmann, 39 Mo. 206. (4) Defendant did not convert the wheat. 3 Roberts on Practice, 462; Nanson v. Jacobs, 93 Mo. 331; Walsh v. Sichler, 20 Mo.App. 374. Neither first, by a tortious taking, -- nor second, by any act of dominion. Newhall v. Kingsbury, 131 Mass. 445; Dusky v. Rudder, 80 Mo. 400; Nanson v. Jacobs, 93 Mo. 331; Cooley on Torts, 456; Rembaugh v. Phipps, 75 Mo. 422; Smith v. Ball, 9 Mo. 873; Loring v. Mulcahy, 3 Allen, 575; Leonard v. Tidd, 3 Met. 5; Matteawan Co. v. Bentley, 13 Barb. (N. Y.) 641; Crocker v. Gallifer, 44 Mo. 491; Petit v. Boujio, 1 Mo. 64, nor third, by the demand and refusal. Munger v. Hess, 28 Barb. (N. Y.) 75; Hill v. Belasco, 17 Ill.App. 194; Fillmore v. Hubbard, 31 How. (N. Y.) 424; Kelsey v. Griswold, 6 Barb. (N. Y.) 436; Davis v. Buffum, 51 Me. 160; Yale v. Saunders, 16 Vt. 243; Boobier v. Boobier, 39 Me. 406; Wards v. Moffatt, 38 Mo.App. 395. (5) The bringing of the attachment suit against the Imboden Commission Co. was an affirmance of the sale. Bach v. Tach (N. Y.), 26 N.E. 1019. (6) The suit, as an equitable one, must fail in the light of the evidence.

Lathrop, Morrow & Fox for respondent.

(1) The petition is sufficient, whether the action be called conversion, or money had and received. It alleges that defendant received certain money to which plaintiff was entitled, and refused on demand to pay it over. Maxwell on Code Pleading, p. 247; Railroad v. McLinery, 32 Mo.App. 166; Jacoby v. O'Hearn, 32 Mo.App. 566. (2) If defendant desired to object to the union of two causes of action in the same count, it should have filed a demurrer or a motion to require plaintiff to elect. Having omitted to do so, it is now too late to complain. (3) Whatever the issues may have been, as defined by the pleadings, the issues tried and submitted to the jury, upon the instruction of the defendant, asked by it and given by the court, were broad enough to cover a cause of action for money had and received. This being so, defendant cannot now insist that the issues made by the pleadings are too narrow to sustain the judgment. Hilz v. Railroad, 101 Mo. 42; Bettes v. Magoon, 85 Mo. 580; Thrope v. Railroad, 89 Mo. 650; Loomis v. Railroad, 17 Mo.App. 340. (4) Treating the case as an action for money had and received by defendant, for the plaintiff's use, the legal propositions raised by appellant have no application. (5) The terms of the sale being cash on delivery, and no cash being paid, no title passed to the Imboden Company, and the latter could convey no title to any sub-vendee. Railroad v. Irwin (Ind.), 9 American and English Railway Cases, 252; Bank v. Railroad, 46 N.W. 342; Freight Co. v. Stanard, 44 Mo. 71; Decan v. Shipper, 35 Pa. St. 239; Levan v. Smith, 1 Denio 573; Dows v. Perine, 16 N.Y. 325; State v. Brewing Co., 32 Mo.App. 276; Benjamin on Sales, p. 569, secs. 335-363; Hodgson v. Barrett, 33 Ohio St. 63. (6) The institution of the attachment suit, in ignorance of the facts necessary to a choice of remedies, was no bar to this action. Anchor Milling Co. v. Walsh, 20 Mo.App. 107; Lapp v. Ryan, 23 Mo.App. 436; Butler v. Hildreth, 5 Met. 49; Bunch v. Grave, 12 N.E. 517; 6 American and English Encyclopedia of Law, p. 254; Anderson's Appeal, 36 Pa. St. 476; Payton v. Bowen, 14 R. I. 375; Sopworth v. Munghen, 30 Beav. 235; 1 Bigelow on Fraud, p. 435. (7) Where goods are sold for cash on delivery and the vendor obtains possession by giving a check, which is dishonored, the contract for a sale becomes void, and no subsequent suit by attachment can operate to transfer the title to the vendee. Freight Co. v. Stanard, 44 Mo. 71; Bishop on Contracts, sec. 846. (8) Giving to the doctrine of election between inconsistent remedies, all that appellant claims for it, the judgment below is still for the right party, for the reason that the evidence is undisputed, that plaintiff, before the bringing of the attachment suit, had elected to pursue the grain as its own, and had refused to waive its right to prepayment.

OPINION

Burgess, J.

-- This is an action to recover the proceeds or value of six car loads of wheat. Prior to August 30, 1890, the Imboden Commission Company, a corporation engaged in the grain business, contracted to buy of the plaintiff in this action, also a corporation engaged in the grain business, six car loads of wheat. On that day, Saturday, August 30, 1890, the plaintiff delivered to the Imboden Commission Company, the six cars of wheat in controversy, by delivering to them the original bill of lading, the inspector's certificate, elevator receipts, etc., and receiving in return the check of the Imboden Commission Company on defendant bank for $ 3,719.37, being the price agreed upon. The Imboden Commission Company went to the Missouri Pacific Railway Co., and surrendered the Johnson-Brinkman bill of lading, receiving in exchange therefor a bill in their own names, consigning the grain to their order in St. Louis, and marked: "Notify C. H. Albers & Co.," to whom they had sold it. They drew a draft on Albers & Co. for $ 3,743.19, which amount represented the price of the grain agreed on with Johnson-Brinkman Commission Company, and certain commissions and charges for exchange. This draft was attached to the Imboden bill of lading, and, together with the usual receipts and certificates, was deposited with the defendant bank, being at once carried to the credit of the Imboden Commission Company. The purpose of the deposit, was for the bank to forward the draft, etc., to St. Louis and collect the proceeds of Albers & Co.

On the same day, August 30, the bank sent the draft and bill of lading to its correspondent in St. Louis, to whom, on Monday, September 1, during banking hours, the amount thereof was paid by Albers & Co. The plaintiff deposited the check which Imboden Commission Company had given it for the wheat to their account at the Midland National Bank on the afternoon of Saturday, and on Monday, September 1, it passed through the clearing house and was presented to defendant bank for payment, and payment was refused. On the afternoon of Monday, September 1, apparently after banking hours, Imboden, president of the Imboden Commission Company, which had drawn the check, and Mr. A. D. Johnson, president of the plaintiff corporation, called on Mr. Thayer, cashier of the Central bank, and demanded the wheat back, or the money for the wheat. Thayer claiming on the part of the bank, that he had no funds applicable to such payment, refused the request; saying, however, that if it should turn out Imboden had anything he would turn it over.

Afterwards and on the same day, Imboden turned over to Johnson all the property, apparently, that the Imboden Commission Company owned, consisting of some office furniture, etc., and Mr. Johnson, for the plaintiff, put up a notice on the door of the office of the Imboden Commission Company that plaintiff was in possession. Whether a bill of sale was executed or not is not agreed by Johnson and Imboden, but there is no question that Imboden intended to pass the title of said property, and that Johnson, for the plaintiff, intended to receive it. It is, however, said both by Imboden and Johnson that this property was not intended as a payment on account of the purchase price of the wheat, but only as a slight contribution on the part of Imboden towards the expenses of the litigation that both supposed to be impending.

On the same day, September 1st, Johnson-Brinkman Company sued out a writ of attachment against the Imboden Commission Company and on the writ garnished the Missouri Pacific Railway Company, but the wheat in controversy had then been shipped from Kansas City and was not seized under the writ of attachment. The attachment suit was pending in the circuit court until ...