Kingman Plow Co. v. Joyce

• Decision Date: 07 March 1916
• Citation: 184 S.W. 490,194 Mo.App. 367
• Parties: KINGMAN PLOW COMPANY, Appellant, v. JAMES R. JOYCE et al., Trustees, Respondents
• Court: Missouri Court of Appeals

184 S.W. 490

194 Mo.App. 367

KINGMAN PLOW COMPANY, Appellant, v. JAMES R. JOYCE et al., Trustees, Respondents

Court of Appeals of Missouri, St. Louis

March 7, 1916

Appeal from Scott Circuit Court.--Hon. James A. Finch, Judge.

AFFIRMED.

Judgment affirmed.

Sturdevant & Sturdevant and Chas. A. Powers for appellant.

(1) The transaction between plaintiff and defendant constituted a sale by plaintiff to the defendant of sixteen wagons at the price of $ 55 each and five wagon boxes at the price of $ 12 each, and none of the conditions expressed upon said contract in any manner or degree deprived the transaction of any of the attributes of a sale of personal property, binding upon both of the parties thereto. Tufts v. Wynne, 45 Mo.App. 42; Snyder, Exec. v. Murdock, 51 Mo. 175; Walker v. Owen, 79 Mo. 563, 569; Lavalley v Ravenna, 2 L. R. A. (N. S.), 98; Peters et al. v Featherstum, 61 Mo.App. 466. (2) Neither the reservation in said contract, of the title in plaintiff until the goods were paid for nor the provision that they should be paid for as sold, affected the transaction as a sale of personal property. Conditions like these are typical of a usual course of business in transactions of this character and under the well settled authorities in Missouri and elsewhere are entirely consistent with the right of a purchaser to retain the title of the goods sold and the corresponding right of the seller to enforce payment therefor. Blow, Adm. v Spear et al., 43 Mo. 496; McArthur v. Wilder, 3 Barb. 66; Bicking v. Stevens, 69 Mo.App. 168; Newmark on Sales, sec. 23; 21 Amer. & Eng. Ency. of Law, p. 520; McArthur v. Wilder. 3 Barb. 66, 175; Granite Roofing Co. v. Casler, 82 Mich. 466; Tufts v. Wynne, 45 Mo.App. 42; Snyder v. Murdock, 51 Mo. 175; Lavalley v. Ravenna, 2 L. R. A. (N. S.) 98; Manning v. Ins. Co., 123 Mo.App. 456. (3) The provision in said contract that the indebtedness should become due and payable on the condition, among others, that the purchaser should sustain loss by fire, matured the indebtedness sued on, on the 8th day of June, 1911, the day upon which, according to the testimony, defendants' business was destroyed by fire; and it was further subject to become mature under the contract upon the insolvency of the purchaser, or its going out of business, both of which events also occurred. (4) The stipulation in said contract that the plaintiff should have the right to draw from said wagons to fill orders taken in Southeast Missouri is likewise consistent with a sale of the property, that provision being merely a privilege granted to the plaintiff by the purchaser, presumably upon consideration satisfactory to both parties.

R. L. Ward for respondents.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action to recover the sum of $ 610, the alleged purchase price of certain personalty delivered by plaintiff to the Farmers' Mercantile Company. Plaintiff corporation conducts a wholesale business, and in 1910 the Farmers' Mercantile Company, a corporation (hereinafter referred to as the "Mercantile Company"), was engaged in conducting a retail store at Vanduser, Scott county, Missouri. Under a written order executed by the Mercantile Company on September 3, 1910, plaintiff shipped to it fifteen wagons and five "Clinton boxes." It appears that three of the wagons were afterwards returned to plaintiff, and that two were sold by the Mercantile Company and payment made to plaintiff therefor. In June, 1911, the store buildings of the Mercantile Company were destroyed by fire, whereby the ten wagons remaining in that company's possession, and the five boxes, were totally destroyed. Thereafter the defendants were appointed trustees of the Mercantile Company in a proceeding for the dissolution of that corporation, and plaintiff instituted this action against them as such trustees.

At the close of plaintiff's case the court gave a peremptory instruction offered by defendant, in the nature of a demurrer to the evidence. Plaintiff thereupon took a nonsuit, and, upon the court's refusal to set the nonsuit aside, appealed.

The written order of September 3, 1910, signed by the Mercantile Company, is, for the most part, a printed form furnished by plaintiff. It is addressed to plaintiff, and proceeds as follows:

"Please ship the goods hereafter specified on or about 19 or as soon thereafter as possible, via from to Farmers' Mercantile Company . . . the freight charges to be paid by the undersigned unless otherwise agreed and stipulated herein in writing, and the undersigned agrees to receive and settle for same upon these and other terms and conditions printed on back hereof, which are hereby agreed to as being our contract."

"No.

Description.

Price Each.

16

Clinton Wagons Complete with spring

seats but no brakes

55.00

5

26" Clinton Boxes

12.--"

Upon the face of the order the following provisions were written, viz:

"Payable. These wagons are to be paid for as sold."

"Kingman Plow Co. reserves the right to draw on these wagons to fill orders taken in South East Mo."

The printed matter on the back of the order, referred to in the latter, contains certain provisions not applicable to this transaction, having to do with plow-shares, shovels, etc. And certain other provisions are here wholly irrelevant. So much thereof as could possibly have any bearing upon the case before us, is as follows:

"If requested, notes with highest legal rate of interest per annum from maturity, unless otherwise specified (including exchange and collection charges), will be given to you [plaintiff] on receipt of invoice and bill of lading in settlement of same, it being expressly understood that title to the goods shall not pass until said notes are paid in money.

. . . .

"The undersigned purchaser agrees to look to transportation companies for all losses or damages to goods in transit when receipted for in good order. .

"If the undersigned purchaser countermands this order, or any part thereof, or causes shipment to be held beyond present season, the undersigned purchaser agrees . . . to pay fifteen per cent of the net amount of the goods herein ordered to you as agreed and liquidated damages.

"It is distinctly understood that all goods are sold subject to the following warranty and no other, viz: that they are well made of good material, are durable if used with proper care and will do the work for which they are intended. . . .

"Should the undersigned become insolvent, make an assignment, remove to another place, execute a chattel mortgage, sustain loss by fire or other casualty, transfer property or close out business, or in case of death of any member of the firm or failure to carry out the conditions of this contract or if bankruptcy or attachment or other legal proceedings be begun against purchaser, all obligations provided for in this contract or arising therefrom, shall become due and payable at once, or at any time thereafter, at your option.

. . . .

"It is expressly agreed that the title to and ownership of all goods shipped under this contract shall remain vested in you, unless at your option it shall be expressly waived in writing and the goods are to be held at all times subject to your order until paid for, if sales are made before payment, they shall be made only in the regular course of business and the proceeds of all such sales, whether cash, book accounts or notes, are to be held as your property in trust, until all obligations provided for in this contract or arising therefrom are fully paid in money or until full payment is made at the net prices herein specified but nothing in this clause shall release the undersigned purchaser from making payments as above stipulated. It is further agreed that notes taken by you are not accepted as payment or a novation of waiver of this contract; and shall not be construed as a waiver of your right to have the same recorded, or right to take possession of said goods on demand, but that the same shall be binding as between parties, their successors and assigns."

The rights of the parties depend upon the construction to be placed upon this instrument when taken as a whole. Plaintiff's action proceeds upon the theory that the contract thus entered into was one of sale, though the title to the goods was reserved by the seller until they were paid for; that the transaction was a "conditional sale;" and that where goods are thus sold and delivered, the seller retaining the title as security for the payment of the purchase price, they are at the buyer's risk, and he is liable for the purchase price though they are destroyed by fire or other casualty while in his possession.

The term "conditional sale," is commonly applied to "a class of transactions whereby the terms of the contract the possession of the goods is delivered to the buyer, but the property in them is to remain in the seller until the payment of the price;" though as pointed out by the writers generally, the term is inaccurate and tends to confusion, since the transaction is not in reality a sale but an agreement to sell. [See 35 Cyc. 651, 652.]

"It is the distinguishing feature of the so-called conditional sale that the title to or property in the goods remains in the seller until payment of the price; but the buyer is entitled to the possession and use of the goods until default in payment. The security retained by the seller is not a lien, but a reservation of title and the right to pursue the property in specie." [25 Cyc. 652, 653.]

Learned counsel for plaintiff (appellant here) contend that the transaction here involved is a conditional sale, within the aforesaid meaning of that term; and proceeding upon this hypothesis cite a number of authorities in support...