Moline Plow Co. v. Rodgers

• Decision Date: 06 July 1894
• Citation: 37 P. 111,53 Kan. 743
• Parties: THE MOLINE PLOW COMPANY v. P. A. RODGERS et al
• Court: Kansas Supreme Court

37 P. 111

53 Kan. 743

THE MOLINE PLOW COMPANY v. P. A. RODGERS et al

Supreme Court of Kansas

July 6, 1894

Error from Ness District Court.

THE plaintiff brought this action to recover from the defendants who are the sheriff and undersheriff of Ness county, certain agricultural implements, which had been attached under process issued against one L. H. Underwood. The property was obtained by Underwood from the plaintiff under two written contracts, one of them for the mowers alone, and the other for the other implements, consisting of plows, cultivators harrows, corn planters, etc. The contract with reference to the mowers is one by which Underwood was appointed agent of the plaintiffs for the sale of the mowers. The contract contains the following provision:

"The above mowers, and all others ordered and sold by the second party during the season, to be settled for at above prices on or before the September 1, 1887, with farmers' notes taken in accordance with section six of this contract maturing, one-half not later than October 1, 1887, and one-half not later than January following: Provided, That the party of the second part shall have the privilege of paying all cash September 1, 1887, less a discount of 5 per cent. from above net prices on mowers. Any Knowlton mowers remaining on hand at close of season are to be settled for by notes of second party, maturing one-half October 1, 1888, and one-half January 1, 1889, or to be stored, free of charge, in accordance with section four of this contract, as the property of the Moline Plow Company, until following season. Settlement to be at the option of the party of the first part."

The other contract is an order for the goods, on terms of payment therein stated, containing also the following written clause:

"It is understood and agreed that L. H. Underwood is to remit promptly to the Moline Plow Company, at Kansas City, Mo., all the notes and cash for goods sold; said notes to be held as security for the payment of the said Underwood's individual notes given in accordance with within contract, and said notes to be returned to the said Underwood (or whomever the Moline Plow Company may appoint) for collection, and all goods remaining unsold at end of season to be settled for by said Underwood's individual notes, due October 1, 1888, secured (if the Moline Plow Company so direct) by farmers' notes, or said unsold goods to be stored, free of charge, as the Moline Plow Company's property. Either settlement, as above, to be wholly optional with the Moline Plow Company. And it is further understood, that all farmers' notes given by the said Underwood as security shall be replaced by good notes from other sources, if not paid within 60 days from maturity.

"In consideration of the Moline Plow Company's appointing L. H. Underwood their agent, the said Underwood agrees to neither buy nor sell any other makes of plows, cultivators or listers except those ordered herein."

These contracts were made on the 23d day of February, 1887. In the fore part of May, 1887, Underwood quit business, and left Ness City, leaving the property in care of one Grisson. On the 12th of May, an attachment in a suit brought by one John Dunham against L. H. Underwood was levied by the sheriff on the goods in controversy, and other attachments were levied thereon a few days afterwards. The plaintiff, learning that Underwood had mortgaged his stock, sent one E. W. Daily to Ness City to look after its interests. After learning that Underwood had absconded, T. B. Gorton, the manager of plaintiff's business at Kansas City, went to Dade county, Missouri, and brought suit against Underwood for the full amount of all goods delivered to him, and obtained an order of attachment, and had the same levied on certain lands situated in that county. This writ of attachment was issued on the 13th day of May, 1887. This action was brought by the plaintiff in Ness county on the 23d day of May, 1887. The plaintiff afterward amended its petition in the Dade county attachment suit so as to leave out all the goods in controversy in this case, and asked and obtained judgment for the balance only. The case was tried by a jury, and a verdict rendered in favor of the defendants, and the plaintiff brings the case here for review.

Judgment affirmed.

Lewis & Fierce, for plaintiff in error.

Geo. S. Redd, and Buchan, Freeman & Porter, for defendants in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.:

While various questions are raised by the plaintiff in error on the rulings of the court as to the admission of evidence and on the instructions, it is only necessary to consider whether the plaintiff is entitled to recover on the conceded facts of the case. In the brief for the plaintiff in error two questions are asked: (1) Did the written contracts under which Underwood obtained the property constitute a sale from plaintiff to him? (2) If not, did the act of the plaintiff in bringing the attachment suit in Dade county, Missouri, have the effect to pass title to him? These questions will be considered in their order.

I. As to the Knowlton mowers, we think the contract was one of agency, under which the title to the mowers remained in the plaintiff until it elected to treat the transaction as a sale to Underwood. As to the contract under which the plows and other implements were shipped to Underwood, we think it a contract of sale which passed to Underwood a title to the property in the first instance, subject only to be defeated by the actual exercise of the election of the plaintiff to retake the unsold property as its own, instead of notes of the plaintiff, as provided in the contract. This contract is first, an order from Underwood to the plaintiff for the goods, to be...