Oester v. Sitlington
| Decision Date | 25 March 1893 |
| Parties | Oester v. Sitlington, Plaintiff in Error |
| Court | Missouri Supreme Court |
Error to Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Reversed and remanded.
Henry Wollman and I. J. Ringolsky for plaintiff in error.
(1) There was no agreement in this case that the title should not pass to the vendee. If the vendor had intended to hold the title in himself he should have had the goods consigned to himself and then sent the bill of lading to some local bank to have been delivered to the vendee on the delivery of the note or the payment of the cash. Brunswick v Martin, 20 Mo.App. 158; Burgman v. Railroad, 104 Mo. 77. (2) The spirit of the law of Missouri is opposed to all secret reservations of title on the part of the vendor of personal property. Straus v. Rothan, 102 Mo. 261; Herryford v. Davis, 102 U.S. 235; Collins v Wilhost, 18 S.W. 841. (3) Even in states where conditional sales of property are allowed, vendors under circumstances similar to those in this case are held not to have any standing in court in a replevin suit. 1 Benjamin on Sales [Corbin's Ed.] sec. 349; Thompson v Conover, 32 N. J. L. 466; Russell v. Minor, 22 Wend. 659; Henderson v. Lauck, 21 Pa. 359; Harding v. Wirts, 1 Tenn. Ch. 610; Paul v. Reed, 52 N.H. 136; Leedom v. Phillips, 1 Yeates, 527; Bowen v. Burk, 13 Pa. 146; Bachantoss v. Speicer, 81 Pa. 324; Mackaness v. Long, 85 Pa. 158. (4) "The right of reclamation after delivery exists only in case of fraud or deceit in the purchase or in the procuring of the possession." See to same effect McGraw v. Gilmer, 83 N.C. 162; Farmers' Phosphate Co. v. Gill, 16 A. 214.
Lathrop, Morrow & Fox for defendant in error.
(1) Revised Statutes, 1889, section 5178, can have no application. It does not appear in the record that A. L. Kohn had any creditors, and subsequent creditors are the only ones who can invoke the statute. State v. Brewing Co., 32 Mo.App. 281; Defiance, etc., v. Trisler, 21 Mo.App. 71; Forrister v. Moore, 77 Mo. 662. (2) The present case is not and cannot under the evidence be made a conditional sale. In a sale not conditional two elements must concur on the part of the vendor, to-wit, he must part with right of property and right of possession. There must be a transfer of the absolute or general property in the thing sold. 1 Benjamin on Sales [4 Am. Ed.] sec. 1; Wells on Replevin, sec. 122; Ober v. Carson, 62 Mo. 214; Milling v. Ins. Co., 25 Mo.App. 265. (3) Upon the evidence there can be no contention made that defendant in error intended, by shipment of the whiskey in controversy, to part with his right of property until the four months note was given by Kohn, or that he intended to part with his right of possession. The express contract provides the contrary, as disclosed in the letters that passed between the parties. (4) "The sale was for cash, the payment of the purchase price being a condition precedent, which not being complied with prevented the sale from being consummated." State to use v. Brewing Co., 32 Mo.App. 281. (5) In the case at bar there was not only no conditional sale, but no sale at all. No title or right of property passed. Hammett v. Linneman, 48 N.Y. 399; Adams v. O'Connor, 100 Mass. 515; Smith v. Lynes, 5 N.Y. 43. (6) "Prior to 1877 the law in this state was, that, where personal property was sold and delivered upon an agreement that the title should not pass until the purchase money was paid, no title passed until this condition was fulfilled, and the vendor, if guilty of no laches, might recover it, even from an innocent purchaser of the vendee." Machine Works v. Trisler, 21 Mo.App. 70, and cases cited as follows: Parmelee v. Cathewood, 36 Mo. 480; Little v. Page, 44 Mo. 412; Griffin v. Pugh, 44 Mo. 326; Ridgeway v. Kennedy, 52 Mo. 24; Mathews v. McElroy, 79 Mo. 202; Mfg. Co. v. Creep, 85 Mo. 548. (7) For the purpose of giving protection to creditors who lent credit upon the faith of possession of property as indicating ownership, the law was amended to read as it does now and did in the statutes of 1879 (section 2505), and this change only applies to protect subsequent creditors. Machine Works v. Trisler, 21 Mo.App. 71. (8) The amendment to section 2505 of Revised Statutes, 1879 (now sec. 5178, Revised Statutes of 1889), "in nowise affected the rule as between vendor and vendee." Tufts v. Thompson, 22 Mo.App. (564), 568. (9) The first clause of old section 2505 of Revised Statutes of 1879, now 5178 of statutes of 1889, has no application to the case at bar. Miller v. Bascom, 28 Mo. 354; Wangler v. Franklin, 70 Mo. 660. (10) Nor can an attaching creditor, by reason of the fact alone of his attachment, get any better rights to or in property attached than the attached debtor had. Hope v. Blair, 105 Mo. (85) 95, and cases cited; Drake on Attachment [6 Ed] sec. 245. (11) It is undeniably true, by the authorities above cited, that, in the absence of subsequent creditors, the vendor has a right, in a case like the one at bar, to repossess himself of the property. Such also is the ruling of the supreme court of this state in numerous decisions. Ridgeway v. Kennedy, 52 Mo. 25; Wangler v. Franklin, 70 Mo. 660; Sumner v. Coffey, 71 Mo. 126; Coover v. Johnson, 86 Mo. 538. (12) No question of waiver can be listened to by this court, because none is pleaded. Fernan v. Whitford, 39 Mo.App. 316. (13) No question of waiver can now be raised by plaintiff in error. He did not try the case in the court below on any such theory, and cannot here change his theory adopted below. He cannot be allowed to go about with a knife in his sleeve. He exhibits no proof of any special privilege to him to carry a concealed weapon. McKinney v. Guhman, 38 Mo.App. 346; Martinowsky v. City, 35 Mo.App. 78; Richardson v. Palmer, 36 Mo. App 101; Whitstone v. Shaw, 70 Mo. 580; Walker v. Owen, 79 Mo. 567; Holmes v. Braidwood, 82 Mo. 617.
The suit is replevin to recover from defendant, who was the sheriff of Jackson county, fifty barrels of whiskey, valued at $ 2,900, of which plaintiff claimed the ownership. The answer was in substance a general denial.
Plaintiff was engaged at Lawrenceburgh, Indiana, in distilling whiskey and selling it at wholesale. One A. L. Kohn was engaged in the wholesale liquor business at Kansas City, Missouri. Plaintiff had in his employ a traveling agent named H. J. Bruning. The authority of the agent was limited to soliciting orders, which he was required to take subject to the approval of plaintiff. He was also required to ascertain and report the financial standing of those from whom he took orders. In September, 1889, Bruning received an order from Kohn for twenty-five barrels of whiskey, which was approved and filled by plaintiff. The bill for this order was paid by Kohn. On the occasion of taking this order Kohn told Bruning that he was worth between $ 30,000 and $ 40,000, and was able to meet all accounts. This statement was reported to plaintiff, and he was informed by his agent that Kohn was financially good and that he bought goods in large lots.
On January 20, 1890, Bruning took another order from Kohn for fifty barrels of whiskey. The order as sent to plaintiff by his agent was as follows, omitting address:
On January 29 plaintiff wrote Mr. Kohn in reference to this order as follows:
On January 27 Kohn wrote plaintiff as follows:
On January 31, 1890, Kohn wrote to plaintiff as follows:
On the strength of this correspondence the whiskey was shipped February 4, 1890. The bill of lading was issued by the Ohio & Mississippi Railway Company, showing that it had received from plaintiff, Lawrenceburgh, Indiana, fifty barrels of whiskey consigned to A. L. Kohn, Kansas City, Mo.
On the next day, February 5th, plaintiff wrote Kohn as follows:
...
To continue reading
Request your trial