Kingman v. Holmquist

• Decision Date: 11 June 1887
• Parties: FREEMAN KINGMAN v. CHARLES HOLMQUIST
• Court: Kansas Supreme Court

14 P. 168

36 Kan. 735

FREEMAN KINGMAN v. CHARLES HOLMQUIST

Supreme Court of Kansas

June 11, 1887

Error from Saline District Court.

CHARLES HOLMQUIST brought an action to recover from Charles A Kingman and Freeman Kingman the sum of $ 50, as damages for the conversion of twenty-five thousand hedge plants. He alleged that in July, 1882, he purchased the plants from Charles A. Kingman, who was to deliver them at Salina Kansas, on or before March, 1883, and that on or about the latter date Charles A. Kingman delivered the plants at the place of business of Freeman Kingman, at Salina, Kansas together with a lot of other hedge plants, and notified Freeman Kingman that the plants so delivered were the property of Holmquist. It is further alleged that when Holmquist called for the plants about the time of delivery Freeman Kingman refused to deliver them to him, and on the contrary converted the same to his own use, well knowing that they were the property of the plaintiff. At the May Term, 1885, the cause was tried with a jury, and verdict and judgment were given in favor of Holmquist and against Freeman Kingman for $ 31.25. The jury made the following special findings:

"1. Was it agreed between C. A. Kingman and Freeman Kingman for Kingman & Co., that said Kingman & Co. should receive, in the spring of 1883, enough hedge plants to satisfy the account of said C. A. Kingman to Kingman & Co.? A. Yes.

"2. Were the plants delivered to Freeman Kingman or Kingman & Co. sufficient to satisfy said account of C. A. Kingman? A. No.

"3. What number of plants were delivered to Freeman Kingman, or to Kingman & Co.? A. 82,000.

"4. Were said plants delivered in one lot without any division or separation into different lots, except as they were tied in bundles of 250 plants each? A. Yes.

"5. What number, if any, of said plants, were, by the persons delivering them, intended for the plaintiff? A. 25,000.

"6. Was that number in any way marked or separated from the whole lot of plants delivered at the time, so as to show which particular plants were intended for plaintiff? A. No.

"7. Did not defendant refuse to receive and receipt for the plants delivered, except upon the account of Kingman & Co. against C. A. Kingman? A. Defendant received the plants, and then refused to receipt for them, except upon the account of Kingman & Co.

"8. When the agreement was made between the plaintiff and C. A. Kingman for 25,000 hedge plants, were they in the ground, indiscriminately mingled with a much larger number of plants? A. Yes.

"9. Were the plants delivered appropriated by Freeman Kingman, or by Kingman & Co., which? A. Kingman & Co.

"10. Was Freeman Kingman a member of the firm of Kingman & Co. when the plants were appropriated? A. Yes."

Thereupon Freeman Kingman moved for judgment upon the special findings, and also for a new trial, both of which motions were overruled. He brings the case here.

Judgment affirmed.

Garver & Bond, for plaintiff in error.

John Foster, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

The only contention of the plaintiff in error is, that the twenty-five thousand plants purchased by Holmquist were not separated from the whole number delivered, in such a way as to transfer the title to him, and enable him to maintain an action for conversion. The hedge plants were tied up in bundles of two hundred and fifty plants each, which, so far as the record shows, were the same in quality and value. Holmquist purchased and paid for the plants, and the vendor agreed to deliver them at Kingman's place of business at Salina. He did deliver them there in accordance with his agreement, and at the same time and place he delivered fifty-seven thousand for Kingman, in part payment of an indebtedness which he owed to Kingman. The whole eighty-two thousand were delivered together to Kingman, and at that time he was informed that one hundred bundles, or twenty-five thousand, were for Holmquist, and that the remaining two hundred and twenty-eight bundles, containing fifty-seven thousand, were for himself. Kingman appropriated all of the plants to his own use, and hence this action.

We think the sale to Holmquist was complete, although the twenty-five thousand plants sold were not separated from the whole number delivered, and that the action for conversion can be maintained. It will be observed that the controversy is not with the vendor. He had received full payment, had tied the plants up in bundles, and had delivered them at the place agreed upon. By this action he intended to transfer the title to Holmquist, and he has ever since regarded and treated it as a complete sale. Nothing remained to be done by him to ascertain the quantity, quality, or price of the plants sold. It is argued that because the bundles intended for Holmquist were not set apart or designated by some mark, the title did not pass. But separation could not make more certain the quantity, quality or price of the plants purchased by Holmquist. They were a part of a specific and ascertained quantity. There were three hundred and twenty-eight bundles of plants, which were uniform in the number contained in each, as well as in the quality and value. It was therefore immaterial from...