Kingsland-Ferguson Mfg. Co. v. Culp

• Decision Date: 30 April 1885
• Citation: 85 Mo. 548
• Parties: KINGSLAND-FERGUSON MANUFACTURING COMPANY, Appellant, v. CULP.
• Court: Missouri Supreme Court

85 Mo. 548

KINGSLAND-FERGUSON MANUFACTURING COMPANY, Appellant,

v.CULP.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Newton Circuit Court.--HON. M. G. MCGREGOR, Judge.

RENERSED.

George Hubbert for appellant.

(1) The sale being a conditional one, the title did not vest in the vendee, and a bona fide purchaser is not protected. Sumner v. Cottey, 71 Mo. 121; Wangler v. Franklin, 70 Mo. 659; Ridgeway v. Kennedy, 52 Mo. 24; Parmlee v. Catherwood, 36 Mo. 479; Little v. Page, 44 Mo. 412. (2) The plaintiff was guilty of no neglect or laches which would bar his recovery. Powell v. Bardlee, 9 G. and J. (Md.) 220; Farlow v. Ellis, 15 Gray 229. (3) A creditor can pursue two or more concurrent remedies without prejudice to his substantial rights, and until he obtains satisfaction cannot be questioned. Thornton v. Pigg, 24 Mo. 251; Burnheimer v. Hart, 27 Iowa 19; State, etc., v. Dean, 40 Mo. 468; State, etc., v. Doan, 39 Mo. 44. (4) No estoppel can be invoked against plaintiff. Taylor v. Zepp, 14 Mo. 482; Spurlock v. Sproule, 72 Mo. 509; Bates v. Perry, 51 Mo. 453; Zuchtman v. Roberts, 109 Mass. 53.Smith & Krauthoff for respondent.

(1) Where the vendor, in cases of conditional sales, is guilty of laches, he cannot reclaim the property, when the price has not been paid, from one who has purchased from the vendee in good faith and without notice. Parmlee v. Catherwood, 36 Mo. 480; Little v. Page, 44 Mo. 412; Ridgeway v. Kennedy, 52 Mo. 24; Robbins v. Phillips, 68 Mo. 100; Wells on Replevin, sec. 343; Sanders v. Keber, 28 Ohio St. 630. The evidence shows plaintiff to have been guilty of such laches as to bar recovery by him. (2) The answer of the defendant “prays judgment for a return of the property seized in the cause,” which meets fully the requirement of section 3854, Revised Statutes. Plaintiff did not observe this, else the first point contained in its brief would have been omitted. (3) It has been expressly decided that while the party cannot be compelled to elect whether he will take the property or its value, before the property has been delivered to the sheriff under the judgment of the court, yet, when he does so elect after verdict in his favor, the court may properly render a simple money judgment in pursuance of such election. White v. Graves, 68 Mo. 218; Wooldridge v. Quinn et al., 70 Mo. 370.

L. M. Lloyd also for respondent.

(1) The judgment against the Edwards for the value of the “thresher outfit” operated to transfer the title to the Edwards and to estop a claim by appellant to the property. Bank of Beloist v. Beale, 11 Abb. 375; 20 How. 331; 19 How. 91; 2 Whittaker's Practice (3 Ed.), 101. (2) The notes and the clause relied on by appellants as creating the conditional sale merged into the judgment obtained by appellant against the Edwards in February, 1879, and before respondent purchased the “thresher outfit.” Cooksey v. Railroad, 74 Mo. 477; Freeman on Judgments (2 Ed.) secs. 215, 216, 217; Blake v. Downey, 51 Mo. 438; Union R. R. & T. Co. v. Troube, 59 Mo. 355. The cause of action is changed into a matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. Bigelow on Estoppel (2 Ed.) note 5, pp. 50, 51. In United States v. Price, 9 How. 83, the court said “that a judgment was an extinguishment of the bond. It no longer existed as a security, being superseded, merged and extinguished in the judgment. The creditor had no longer any remedy, either at law or in equity, on his bond, but his remedy was on the judgment.” Bigelow on Estoppel (2 Ed.) 56, 57, 219, and note 4, p. 220. (3) The appellant had ample time to insist on its rights to have the condition performed or the property restored, but it did neither, and by its conduct for four years, clearly showed that whatever right or intention it may have had, had been waived or abandoned. Robbins v. Phillips, 68 Mo. 101.

NORTON, J.

This is a suit in the nature of repievin to recover certain specific personal property described in the petition, and known as the “thresher outfit.” Defendant obtained judgment, from which the plaintiff has appealed. The facts are as follows:

In July, 1876, plaintiff sold to J. W. Edwards, W. L. Edwards, and P. H. Edwards, the thresher outfit, for which they executed two notes for two hundred and ten dollars each, one of them payable on the first of November, 1876, and the other on the first day of October, 1877, in both of which notes it was expressly provided that the title or ownership of the property should not pass from the plaintiff until the property was fully paid for; that soon after the maturity of the first note, defendants make a payment of one hundred and fifty dollars thereon; that on the twenty-second of January, 1878, about three months after the maturity of the second note, suit was brought on both notes in the Newton county circuit court, and judgment obtained for the balance due in February, 1879, against two of the Edwards (one of them, W. L. Edwards, not being served); that execution issued on the judgment and was returned to the February term, 1880, not satisfied; that this suit was begun on the twelfth day of July, 1880, against defendant Culp, who, in the last of June or first of July, 1879, bought the property of J. W. Edwards, paying therefor one hundred and fifty dollars in cash, and executing his note for one hundred dollars; that defendant, so far as the record shows, had no knowledge or notice of plaintiff's claim.

On this state of facts, the court refused instructions asked by plaintiff, to the effect that under the conditions of the sale plaintiff was entitled to recover, although the jury might believe that defendant was a purchaser without notice of plaintiff's claim, and gave the following:

“The court instructs the jury that although the plaintiff made a conditional sale of the machine to J. W. Edwards and others, and it was provided in the note given for the purchase price of the machine that the ownership thereof should remain in plaintiff until the said machine was paid for; yet, if said note became due in 1876, and said machine was allowed to remain in possession of Edwards long after the maturity of said note, and was never taken out of their possession, and if the defendant, in the year 1879, bought said machine in good faith of the Edwards and paid a valuable consideration therefor without any...