M.M. Walker Co. v. Dubuque Fruit & Produce Co.

• Decision Date: 10 October 1898
• Citation: 76 N.W. 673,106 Iowa 245
• Parties: THE M. M. WALKER COMPANY, Appellant, v. THE DUBUQUE FRUIT AND PRODUCE COMPANY, JOHN CARTEGNEY and EDWARD MUNT
• Court: Iowa Supreme Court

76 N.W. 673

106 Iowa 245

THE M. M. WALKER COMPANY, Appellant, v. THE DUBUQUE FRUIT AND PRODUCE COMPANY, JOHN CARTEGNEY and EDWARD MUNT

Supreme Court of Iowa, Des Moines

October 10, 1898

Appeal from Dubuque District Court.--HON. J. L. HUSTED, Judge.

ACTION of replevin to recover possession of seven hundred and sixty-seven barrels of apples. The court directed a verdict for defendants, and plaintiff appeals. The facts will appear in the opinion.

Reversed.

Gibbs & Dohs and D. E. Lyon for appellant.

Matthews & Barnes for appellees.

OPINION

DEEMER, C. J.

H.

M Scott is a fruit grower residing in the state of New York. In the year of 1896 he consigned to the Dubuque Fruit & Produce Company, which is a corporation engaged in the commission business in the city of Dubuque, four cars of apples to be sold on commission. The company advanced him one hundred dollars, paid the freight upon the apples and agreed to sell them for ten per cent. commission. For some reason, not material, however, to the issues presented, the defendant company did not sell the apples as rapidly as Scott anticipated; and he, becoming dissatisfied with the manner in which they were being handled, came to Iowa and endeavored to sell them to the produce company. Failing in this, he induced the commission company to advance him another one hundred dollars; and the evidence tends to show that, after this advancement was made, the manager of the commission company gave Scott the names of various dealers in the city of Dubuque, and agreed that he might sell them to some one else. Acting upon this agreement, Scott went forth, and quickly sold the apples to the M. M. Walker Company. With an agent of this latter company, Scott went to the office of the produce company, and both he and an agent of the Walker Company demanded the apples, and agreed to pay all advancements charges, and commissions. The agent of the produce company consented to this arrangement; but, as Scott and the representative of the Walker Company were leaving the store, the agent of the produce company changed his mind, and declared that he would not deliver them. Neither Scott nor the agent of the Walker Company knew the amount of the produce company's charges, but they offered and agreed to pay whatever sum was due, and the produce company made no objection to the offer. This refusal on the part of the produce company to turn over the goods occurred some time in the morning of the eighteenth day of December, 1896. In the afternoon of that day, Scott again visited the produce company, and was then informed that the apples had been sold by that company to a man by the name of Cartegney. The evidence tends to show that this man was in the employ of the produce company as a teamster, and that he gave his individual note for the purchase price. Cartegney is made a party to this suit, and it is claimed the sale to him was without authority, fraudulent, and void. The trial court directed a verdict for the defendants, upon the theory that the produce company had a lien upon the property for advances made and charges paid, and that there was no evidence that such charges or advances had been paid or tendered before the commencement of the action.

That the produce company had a lien for all proper advancements charges, and commissions is conceded; but it is claimed that it so conducted itself that it has waived its lien. The rule seems to be that if a factor voluntarily parts with the possession of the goods, pledges them for his own debt, or suffers them to be attached, his lien is lost, and the owner may recover them notwithstanding the lien....