Lewis v. Mason

• Decision Date: 28 November 1887
• Citation: 5 S.W. 911,94 Mo. 551
• Parties: LEWIS v. MASON.
• Court: Missouri Supreme Court

5 S.W. 911

94 Mo. 551

LEWIS v. MASON.

Supreme Court of Missouri.

November 28, 1887.

1. AUCTIONEERS AND COMMISSION MERCHANTS — LIEN FOR ADVANCES — RIGHT TO POSSESSION — ATTACHING CREDITORS OF CONSIGNOR.

The plaintiff, an auctioneer and commission merchant, received from one Landecker, in good faith and without notice of any fraud, a consignment of clothing, to be sold on commission. After the delivery to him of one-half of the goods, he advanced to said Landecker the sum of $2,500 on account. Soon thereafter the sheriff levied on said goods under writs of attachment sued out by certain creditors of one Levy, the original owner of said clothing, and who had executed a bill of sale of same to Landecker, whereupon plaintiff brought suit in replevin to recover possession of the goods. Held, plaintiff had a right to the possession of the goods as against an attaching creditor, and of this possession he could not be deprived, either by the consignor, or creditor of the consignor, until his advances, commissions, and charges were tendered him, and he was made whole.

2. SAME — REPLEVIN — MEASURE OF DAMAGES.

The plaintiff, an auctioneer and commission merchant, by virtue of a writ of replevin, regained possession of certain goods consigned to him to be sold on commission, but which had been seized by the sheriff under writs of attachment against the seller to his consignor, and sold said goods at public auction, and under judgment in the action for replevin recovered the whole amount accruing from said sale. Held, that the amount of plaintiff's recovery should have been measured by the sum total of his advancement, commissions, and charges, and that the surplus remaining over should have been adjudged to the defendant.

NORTON, C. J., dissenting.

Appeal from St. Louis circuit court; WILLIAM H. HORNER, Judge.

Henry W. Bond, for appellant. Geo. M. Block, for respondent.

NORTON, C. J.

This is a replevin suit to recover from defendant the possession of certain goods, in which plaintiff had judgment, from which defendant has appealed, and assigns as the chief ground of error the action of the court in giving, at the close of all the evidence, an instruction to the effect that, under the evidence, the finding must be for the plaintiff. The evidence tends to disclose the following state of facts: That plaintiff, who was an auctioneer and commission merchant in the city of St. Louis, on the twelfth day of July, 1883, received into his possession from one Landecker the lot of mixed clothing in controversy in this suit, and to be sold by him on commission; that at the time he received them Landecker exhibited to him an invoice or bill of sale of said goods, which was executed by one Levy; and that plaintiff, after the delivery to him at his commission house of one-half the goods, and while the others were in course of delivery, advanced to said Landecker the sum of $2,500, in a check drawn on the Bank of Commerce, and payable to the order of said Landecker, dated on the twelfth, and paid by said bank on the thirteenth of July, being indorsed in blank by said Landecker. The evidence also tends to show that thereafter, on the twelfth July, 1883, there came to the hands of defendant, sheriff of the city of St. Louis, three certain writs of attachment sued out by certain creditors of said Levy, and that about 2 o'clock in the afternoon of said day he levied said suits on the said stock of clothing in plaintiff's possession as the property of said Levy, and took the same in possession; that thereafter, under an order made in this suit for the delivery of the goods to plaintiff, he having given bond, they were returned to plaintiff, and were subsequently sold by him at public...