Koehler v. Franklin Paving Co.
| Decision Date | 06 March 1925 |
| Docket Number | No. 3629.,3629. |
| Citation | 269 S.W. 400 |
| Parties | KOEHLER v. FRANKLIN PAVING CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Butler County; Almon Ing, Judge.
Action by Paul Koehler against the Franklin Paving Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Sam M. Phillips, of Poplar Bluff, for appellant.
Henson & Woody and W. A. Welker, all of Poplar Bluff, for respondent.
Action for conversion. Trial by jury and judgment for defendants, and plaintiff appealed.
The material facts in this case are as follows: The plaintiff resides in Memphis, Tenn., and in June, 1921, sold and delivered at Memphis, to S. B. Franklin and J. L. Nichols, a partnership doing business in the name of Franklin Paving Company, a certain No. 11 Koering gasoline concrete mixer and street paver with broom and bucket complete for $1,100. Delivery was made at Memphis, Tenn., at the time of the sale. Franklin and Nichols shipped the property to Poplar Bluff, Mo., where they had a contract to build a concrete highway under the State Highway Commission. The property was sold on credit, and no note or mortgage was given and no lien of any kind retained by the purchaser. In the following August, Franklin and Nichols, with one other party, formed a corporation and named it Franklin Paving Company. In forming this corporation the property bought from plaintiff was put in as a part of the assets and in payment Of a large part of the stock of the corporation. On September 12, 1921, following the organization of the corporation, a note for $1,100, the amount of the purchase price of the property bought from plaintiff by Franklin and Nichols, was given to plaintiff and signed, "Franklin Paving Company, by J. B. Franklin." On the same day, September 12, 1921, plaintiff executed a bill of sale which purported to convey the property above described to Franklin Paving Company, a copartnership, composed of J. L. Nichols and J. B. Franklin. This bill of sale had in it the following clause: "Title to said property is hereby expressly retained in the seller until fully paid for." It is apparent from the language of this bill of sale that the note given on the same day and signed, "Franklin Paving Company, by J. B. Franklin," was not intended as the note of the corporation, but was, in fact, the note of the copartnership composed of J. B. Franklin and J. L. Nichols, the same parties who bought the property from plaintiff. This bill of sale, by oversight, was not offered in evidence at the trial and is not in the bill of exceptions. Appellant has copied it in his brief and asks that the judgment be reversed and the cause remanded in order to give him an...
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