Klein v. Fisher

• Decision Date: 24 April 1888
• Parties: SOLOMON KLEIN et al., Appellants, v. WILLIAM FISCHER, Respondent.
• Court: Missouri Court of Appeals

30 Mo.App. 568

SOLOMON KLEIN et al., Appellants, v. WILLIAM FISCHER, Respondent.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

NATHAN FRANK, for the appellants: The right of stoppage in transitu of the goods in controversy on the part of the vendors existed, and the court should have so ruled. Estey v. Truxel, 25 Mo.App. 238; Schwabacher v Kane, 13 Mo.App. 126; Lacken v. Rhoades, 51 N.Y. 641; Lentz v. Flint, 53 Mich. 444; Greave v. Dunnam, 60 Iowa 108; Rosenthal v. Dessau, 11 Hun 49; Hutchinson on Carriers, secs. 409-10; 3 Wood's Railway Law, p. 1583, secs, 433-4; Benj. on Sales, secs 839-44. The right to rescind and recover the goods under the facts ought to have been held to be in the plaintiff. Bedault v. Wales, 19 Mo. 36; Thomas v Freligh, 9 Mo.App. 157; 1 Benj. on Sales [Corbin's Am. Ed.] sec. 656 and note. Judgment in this case is unauthorized by the laws of the state of Missouri. The defendant, in his answer, simply put in a general denial. The plaintiffs had obtained possession of the goods; the defendant must, in his answer, claim them and demand return of them, otherwise the court cannot, upon a finding in his favor, give judgment against the plaintiffs for their value, as was done in this case. Rev. Stat., sec. 3854; Young v. Glascock, 79 Mo. 574.

E. T. FARRISH, for the respondent: The right of stoppage in transitu had no application in this case. There had been a complete delivery, and that effectually ended all question of stoppage in transitu. Benj. on Sales, sec. 1246. The objection raised by appellants, that the judgment in this case is unauthorized, because the answer does not claim the property and demand a return thereof, comes too late. The case was tried as though the answer embodied such claim, there was no such objection raised at the trial or on motion for new trial, and hence the decision in Young v. Glasscock, 39 Mo. 574, cited by appellants' counsel, is not conclusive of this case. Mueller v. Kaessmann, 84 Mo. 331.

OPINION

PEERS J.

The record in this case discloses the following facts: Plaintiffs sold to Schoettler Brothers, who were doing a grocery business and dealing in whiskey and wines, the goods in controversy. At the time the salesman of plaintiffs sold the goods to Schoettler Brothers, they had been boycotted by some organization and were doing a " slow business," but told the salesman they were coming out all right. At that time they owed the plaintiffs for a bill of goods previously purchased. The salesman of plaintiffs, whose business house was in Cincinnati, solicited the order, and when Schoettler Brothers declined to buy, offered extra inducements and the purchase was made.

On the tenth day of April following the Schoettler Brothers made an assignment, and immediately thereafter turned over to defendant Fischer, to whom they were indebted, the bill of lading of the goods in question, and took from him a receipt for the amount they were indebted to him, telling him they had made an assignment. These goods had not been brought to the store-house of Schoettler Brothers, but were still stored at the depot or freight-house of the Ohio & Mississippi Railway Company. Defendant Fischer presented the bill of lading to the railway company, received the goods, and stored them in his cellar. Some days afterwards the plaintiffs sued out their writ of replevin, secured the goods, and now claim them under the right of stoppage in transit, and the right to rescind upon discovery of the insolvency of Schoettler Brothers. The cause was tried before the court without a jury and judgment rendered for the defendant.

The motion for new trial is based upon erroneous instructions given and refused, erroneous finding upon the law and evidence, and newly-discovered evidence.

It is not material in this proceeding whether or not Schoettler Brothers told Fischer they had made an assignment. If this were a suit between Fischer and the assignee claiming the property for the benefit of all the creditors, this question, and the further question as to whether the assignment itself carried these goods, might be important.

As to the alleged error of the court in not granting a new trial on account of newly-discovered evidence, it is only necessary to say that a careful reading of the affidavit and matter attached discloses nothing affecting the merits of the case, and the court properly refused a new trial on that ground.

The objection raised by appellants that, because of the insufficiency of the answer the judgment was not warranted, is not well taken. If there was anything in this point it should have been called to the attention of the trial court when the testimony was being offered, and most certainly in the motion for new trial, neither of which was done, but the trial proceeded and the judgment was rendered as if the answer were full and sufficient. It is too late to raise the question here for the first time.

This brings us to the further question, did the court properly declare the law? The instructions are lengthy and numerous, and we deem it unimportant to set them out in full in this opinion. Those given for the plaintiffs are certainly subject to criticism, but they were all so strongly in their favor that they have nothing to complain of. The only instruction asked by the plaintiffs and refused by the court was as follows:

" The court declares the law to be that, under the evidence the right of stoppage in transit

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