McManus v. Sell

• Decision Date: 07 July 1900
• Docket Number: 11,586
• Citation: 61 P. 686,62 Kan. 128
• Parties: T. H. McMANUS v. JACOB WALTERS AND CONRAD SELL
• Court: Kansas Supreme Court

61 P. 686

62 Kan. 128

T. H. McMANUS v. JACOB WALTERS AND CONRAD SELL

No. 11,586

Supreme Court of Kansas

July 7, 1900

Decided July, 1900.

Error from Marion district court; O. L. MOORE, judge.

Judgment reversed.

W. H Carpenter, and Bowman & Bucher, for plaintiff in error.

King & Kelley, and S. Burkholder, for defendants in error.

OPINION

DOSTER, C. J.:

This was an action of replevin of a stock of goods, brought by the plaintiff in error, T. H. McManus, against the defendants in error, Jacob Walters and Conrad Sell. The most material claim of error is that the court, in its instructions to the jury misstated the theory on which the plaintiff based his right to recover the property, and also refused a request for instructions which correctly stated the theory of the claim made by him, and to the establishment of which claim his evidence was directed. The plaintiff claimed to be the owner of the goods, but admitted that he had made a conditional sale of them to the defendants, which conditions, as he claimed, had not been complied with by the defendants. The instructions of the court attributed to the plaintiff a claim of sale of the goods with an express reservation of title until compliance should be made with certain conditions. The plaintiff did not ask that the jury be instructed on the theory of an express reservation of title, but did ask for instructions on the theory of a reservation of title inferable from the facts and circumstances of the case.

To determine the character of the plaintiff's claim a brief statement of the evidence on his part will be necessary. The plaintiff lived and did business at Newton, Kan. He owned the stock of goods in question, which was at Marion, Kan., and in charge of Jacob Walters, one of the defendants, as his agent. Walters and Conrad Sell, the other defendant, desired to purchase the goods at Marion. A part of their plan was for Sell to remove a stock of goods owned by him at a neighboring town and unite it with the one at Marion. The parties met at the last-named town and agreed on terms. These terms were reduced to writing and stated in a provisional memorandum agreement, which recited in substance that an invoice of the stock of goods should be taken; that the plaintiff should sell to the defendants for ninety per cent of the invoice price, payable $ 1000 in cash, the balance in weekly payments thereafter, which payments were to be evidenced by promissory notes signed by the defendants; that upon the completion of the invoice the plaintiff should execute a bill of sale of the goods to defendants, who in turn were to pay the thousand dollars and deliver the notes.

The bill of sale and the notes were signed preparatory to delivery, and the parties met in a law office to complete the transaction. The plaintiff delivered the bill of sale and the defendant Walters handed the plaintiff $ 300 of the cash payment. The plaintiff objected that the amount was not what had been agreed upon. Walters said that it was all he had at that time, but that he would pay the remainder to plaintiff at his home in Newton in a very few days. The plaintiff declined to accede to this change of agreement and demanded the return of the bill of sale. Walters at first objected to returning the bill of sale; but handed it back, upon being advised by the attorney present that it should be done. The parties then separated, with the statement by Walters that his inability to pay the full amount agreed on would be temporary, and that he would presently pay it all, the plaintiff thereupon stating that he would deliver the bill of sale and complete the transaction when the thousand dollars was paid.

The plaintiff returned to Newton and found one of his children suffering a serious injury, from the effects of which it died in about a week thereafter. During this time Walters remitted $ 200 more to the plaintiff and also called on him for the purpose of a conference concerning the payment of the balance and the closing up of the transaction. The plaintiff informed him that on account of the misfortune in his family he was not in a condition to attend to the business, but stated that as soon as he could do so he would go to Marion and close the matter out. Soon thereafter he did go there, but the parties were unable to agree on terms for the completion of the transaction. In one of his conversations there, Walters admitted that the goods still belonged to the plaintiff. During all this time the defendant Walters was in possession of the stock of goods and engaged in the sale of it, as he had been before he opened negotiations for its purchase.

The above summary of facts was in substance the testimony of the plaintiff. It was contradicted in many particulars by the defendants. We, however, are not concerned with the truthfulness of the statements of either party or their witnesses. The plaintiff was entitled to an instruction to the jury presenting his theory of the case, and the question therefore is, Do the facts, as testified to by the plaintiff, present a claim of implied reservation of title or a reservation of title by express agreement? We are entirely clear that they present a case of the former and not of the latter. Indeed, the counsel for the defendants in error, in their opposition to the theory of implied reservation, array only a portion of the circumstances above detailed and one or two additional matters derived from the testimony of their own witnesses and the cross-examination of the plaintiff, which, giving to them all the weight to which, in reason, they may be entitled, in no manner controvert the theory of the plaintiff in error. They say in their printed argument:

"When the plaintiff had accepted a part payment of the cash payment, when he knew the residue was not to be paid at that time, on the promise of defendants to pay within a short time, and then surrendered possession of the stock of goods, knowing same were to be sold in the usual retail trade, and that new goods were to be put in the stock and the Sells goods were to be moved from Lehigh and placed in the same general stock, by which the identity of the goods sold would be lost, and the means of determining the particular article sold would be made well-nigh impossible, and furnished advertisements for the parties to whom he had sold, and had gone away without receiving the payment, and then advertised in his home papers that he had sold out to Walters, it would take an express agreement to reserve a title in the plaintiff under these facts."

The above is but the statement of circumstances proper to be taken into account in considering the nature of plaintiff's claim, but none of them, nor all of them together, possessed a character which would make his claim into one of express reservation of title instead of an implied one. Indeed, the contention of the defendants in error is not so much that the facts show an express...