Martz v. Big Horn Glass Co.

• Decision Date: 09 February 1925
• Docket Number: No. 15240.,15240.
• Citation: 269 S.W. 697
• Parties: MARTZ et al. v. BIG HORN GLASS CO. (PITTSBURG PLATE GLASS CO., Garnishee).
• Court: Missouri Court of Appeals

269 S.W. 697

MARTZ et al. v. BIG HORN GLASS CO. (PITTSBURG PLATE GLASS CO., Garnishee).

No. 15240.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Rehearing Denied February 28, 1925.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

"Not to be officially published."

Action by W. H. Martz and J. C. Fulkerson, trading as the Martz-Fulkerson Lumber Company, against the Big Horn Glass Company and the Pittsburg Plate Glass Company, garnishee. From judgment discharging garnishee, plaintiffs appeal. Affirmed.

Davis & Davis, by John N. Davis, of Kansas City, for appellants.

Baldrige, Dorsey, Randall & Baldrige, of Omaha, Neb., and Haff, Meservey, Michaels, Blackmer & Newkirk and Henry I. Eager, all of Kansas City, for respondent.

TRIMBLE, P. J.

As indicated by the style of this case, it is a controversy between plaintiffs and a garnishee, the latter contending it was not indebted to defendant at the time of, or subsequent to, service of notice of garnishment. The case was tried before the court, a jury being waived, and judgment was rendered discharging the garnishee. The plaintiffs have appealed.

Defendant Big Horn Glass Company was a manufacturer of glass in Wyoming. Garnishee, Pittsburg Plate Glass Company, is a Pennsylvania corporation doing business in Kansas City, Mo., and at Omaha, Neb. Plaintiffs are copartners in the lumber business at Kansas City.

From and after December 22, 1920, defendant owed plaintiffs a note for $3,314.60. On or shortly prior to May 16, 1921, the Omaha office of garnishee ordered of defendant a carload of glass to be shipped to garnishee's customer, the Idaho Glass & Paint Company, at Pocatello, Idaho, and on that date the glass was started on a shipment under straight bill of lading to said Idaho Company. Under the terms of the order or agreement, the glass was to be shipped to the Idaho Company on a straight bill of lading and invoice of the glass was to be sent to garnishee, on receipt of which the latter would pay 90 per cent. of the purchase price and the rest when the glass was unloaded, checked, and found to be satisfactory as to quantity and quality. When the shipment was made, a copy of the bill of lading, together with the invoice, amounting to $4,184.15, was immediately sent to garnishee at its Omaha office.

On May 19, 1921, when the car of glass had been three days in transit and while it was still in process of being transported by the railroad company, plaintiffs instituted suit in Kansas City, Mo., against defendant on its note. Doubtless, this was an attachment suit, though the record does not expressly say so and does not affirmatively state that an attachment writ was issued. The record recites, however, that a sheriff's "return of summons of garnishment in a writ of attachment" was made, and in said return the sheriff of Jackson county, Mo., certifies that on May 19, 1921, he notified the Pittsburg Plate Glass Company that he attached in their hands all debts, etc., due defendant by delivering a notice of garnishment, copy of which was attached to the return, and the sheriff further certifies that he "further executed this writ" by making diligent search, but failed to find any goods of defendant on which to levy. No personal service of process was had on defendant.

It appears, however, that on December 20, 1920, the defendant had executed to J. M. Snyder a chattel mortgage for $80,000 on its stock of glass, which mortgage was duly recorded; and that from and after January 15, 1921, its plant, as a going manufacturing concern, was shut down; and Richardson, assistant secretary and treasurer of the company, was in charge thereof and made sales oat of the stock in the name of the company, with the knowledge and consent of Snyder, the mortgagee, the proceeds of such sales being applied on the mortgage; and it was Richardson who shipped the car or glass in question in the name of the Big Horn Glass Company, as consignor, to the Idaho Company, pursuant the Pittsburg Plate Glass Company's order.

After the notice of garnishment was served on garnishee, Snyder, the mortgagee, demanded of the railroad in possession of the car of glass and engaged in transporting it to Pocatello, Idaho, to deliver the glass to him; and he also instituted a replevin suit to get possession of it, but before the replevin writ was served, the railroad surrendered the glass to him, and he directed it to be returned to Lovell, Wyo., from whence it had started. This return was begun, but before the car arrived at Lovell, Snyder ordered the car stopped, and, in accordance therewith, the car was stopped at Bonneville, Wyo., never having as yet gotten outside the state of Wyoming. After the car was stopped at Bonneville, Snyder had it consigned to himself, as mortgagee, at Pocatello, Idaho, and in due time the car arrived there, and Snyder, through his agent, received it. Thereupon Snyder undertook to deliver the glass to the Idaho Glass & Paint Company and to have the money due thereon paid to him, but the Idaho Company refused to receive the glass on the ground that it was not of the quality called for.

Thereafter, Snyder made a new contract with the Idaho Glass & Paint Company for the sale of the glass on terms that were different from the original purchase contract; and the glass was sold by Snyder to the Idaho Company, and he received the purchase price called for in the new contract.

Before this occurred, controversies had been going on between all parties involved in or affected by the situation, which controversies were being carried on by correspondence. In one of these controversies, Snyder and Richardson were on one side and garnishee on the other; and in another, plaintiffs' counsel were on one side and garnishee was on the other; and still another was between garnishee and the Idaho Glass & Paint Company. Garnishee was insisting that Snyder and Richardson deliver the glass to the Idaho Company in accordance with the terms of the original contract. But Snyder and Richardson would not agree to this unless garnishee would allow the purchase price to be paid to Snyder as mortgagee, while garnishee would not consent to this because it had been garnished. The Idaho Company on its part was insisting that it needed the glass, but as the glass was not being delivered, it finally canceled the contract it had with garnishee for the purchase thereof.

The defendant the Big Horn Glass Company did not get any of the proceeds of the sale of the glass, neither did the garnishee, the Pittsburg Plate Glass Company; nor did the latter have anything to do with the delivery of the glass by the railroad to Snyder nor the subsequent handling or disposal thereof to the Idaho Company. It is true, garnishee sent the bill of lading, or the copy thereof it had received, to the Idaho Company, and also sent the invoice back to the Big Horn Glass Company; but this was after the contract had been canceled.

There was evidence that although Richardson was selling the Big Horn Glass Company's stock of goods, and shipped the car of glass in question in the name of said company, yet, in fact, he was doing so for Snyder, the mortgagee; and there was testimony that the Big Horn Company had turned the stock over to Snyder, but this evidence was stricken out by the court as being a conclusion. As we view the case, it is not material whether the Big Horn Company had actually passed a resolution of its board of directors turning the stock over to Snyder, the mortgagee, or not; for, on the theory hereinafter set forth, even if the sale of the glass was made by and in the name of the Big Horn Company, the latter was doing so as the agent of Snyder, its mortgagee.

Plaintiffs' contentions may, in our own language, be tersely formulated thus: (1) That Snyder's chattel mortgage was not admissible in evidence; (2) that, even if the fact of such mortgage is in evidence,...