Keiler v. Tutt

• Decision Date: 31 January 1861
• Citation: 31 Mo. 301
• Parties: KEILER et al., Defendants in Error, v. TUTT et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

31 Mo. 301

KEILER et al., Defendants in Error,

v.TUTT et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1861.

1. The difference between a sale and an assignment is, that in the former there is a fixed price and no trust, but in the latter there is a mere trust and of course no fixed value given to the property.

2. Where, in case of sale of merchandise, the goods are delivered and the purchaser took immediate possession, “the price and value of the goods to be ascertained by reference to the bills of purchase, and an inventory of said merchandise to be taken by the parties aforesaid;” held, that the delivery was complete and sufficient to vest in the purchaser the right of property.

Error to Morgan Circuit Court.

Douglass & Hayden, for plaintiffs in error.

Upon the record in this case the following questions arise: 1st. Is the instrument of writing purporting to be the agreement between Aaron, Jacobs & Co. and R. Keiler & Co. an absolute bill of sale, or an assignment in trust for the benefit of creditors? 2d. Can one partner make a general assignment of the partnership effects for the benefit of creditors, so as to bind his copartners and pass the title? 3d. Was the sale of the goods complete before the inventory thereof was completed?

I. Upon the first point: The distinction between an absolute bill of sale and an assignment in trust for the benefit of creditors, is well established. Sales are transfers in the ordinary course of business, and usually upon a consideration created or passing at the time, and actually paid or agreed to be paid. It is a complete transaction, passing all the vendor's interest without reversion or return. Sales are also for the exclusive benefit of the immediate grantees. On the other hand, an assignment in trust is generally made upon a preëxisting consideration, and to secure the performance of a duty or the payment of a debt. It is a transfer for a particular object, and the subject of the transfer is to be applied to certain specified uses and purposes. It is a continuing transaction, to subsist until its specified purposes are accomplished, and its characteristic quality is, that after such purposes have been accomplished, the unappropriated residue of the property or its proceeds returns to the assignor. Herein an assignment in trust is distinguishable from an absolute sale: in a sale the vendor parts with all his interest, but in an assignment the assignor retains a contingent resulting interest. (Burrell on Assign. 29 and following; Black v. German, 5 Watts & Serg. 36; United States v. McLellan, 3 Sumner, 352-7; Williamson et al. v. Berry, 8 How. 544; Halcomb v. Ray, 1 Iredell, 340; Shaffer v. Watkins, 7 Watts & Serg. 219; Parker v. Pattee, 4 N. H. 176.)

II. Upon the second point: If then the instrument of transfer be an assignment in trust, the other question is presented, can one partner make a general assignment of the partnership effects, for the benefit of creditors, so as to bind his copartners and pass the title? The plaintiffs in error contend that he can not. The copartnership existing under the firm name of Aaron, Jacobs & Co. was composed of Abram Aaron, Bennett Aaron, Moses Aaron, and Israel Jacobs. The instrument of transfer is executed in the name of Aaron, Jacobs & Co., “by Abram Aaron.” The other partners were in the country. The sheriff's return in the suit in Cooper county shows an actual service on some of them. However variant the decisions may be upon the power of one partner to make a general assignment of the partnership property, yet, in this state, the law is deemed to be settled by the case of Hughes v. Ellison, 5 Mo. 463, that one partner has no such power, and “thus far there is no American case which says that one partner, when the other members are present, may, without their consent, make a general assignment of the effects to a trustee for the benefit of creditors.” (1 Am. Lead. Cas. 444.)

III. Upon the third point: It is contended by the plaintiffs in error that the transfer was not complete as long as any thing remained to be done by the parties. After the execution of the instrument of writing, in evidence, “the price and value of the goods were to be ascertained by reference to the bills of purchase and an inventory of said merchandise to be taken by the partners aforesaid.” The inventory was thus to be the joint act of the parties, and until it was completed, the law is believed to be well settled that no present right of property attaches in the purchaser. (2 Kent, 495, 496, 502.) At the time of the levy in this case, the inventory was not completed. One-third of it remained to be taken. The taking of the key by Keiler did not amount to a delivery. It does not appear that the key had been delivered to him by any one authorized to make such delivery, nor that it was done with any intention of vesting the possession in him, nor that it was accepted by him with such intention. So far as appears from the record, he took the key without authority from any one. (2 Kent, 504.) This position is not in conflict with the decision of this court in the case of Cunningham v. Ashbrook, 20 Mo. 553. The property then, was still in the assignors and subject to the attachments.Ross, Sevier & Henderson, for defendants in error.

I. It is believed the only point important to be considered by the court is, whether the transaction between Aaron, Jacobs & Co. and R. Keiler & Co. was a sale or an assignment. It is submitted that this question can be best determined by reference to the attending circumstances. There is no question as to the indebtedness of Aaron, Jacobs & Co. to R. Keiler & Co. in the several amounts stated. We think there is just as little doubt as to the intention of Aaron, Jacobs & Co. to sell and R. Keiler & Co. to buy the merchandise, horses and wagon. The horses and wagon were delivered, the key of the store was delivered. The parties proceeded to ascertain the value of the merchandise; the price was fixed; the only thing remaining to be done was the completion of the invoice of the merchandise. This was not necessary to pass the title to the property; it was only necessary in order to ascertain the amount or entire value. The evidence shows a complete sale and delivery of the property independent of the writing of Keiler, and Keiler's title...