Packard Piano Co. v. Williams

• Decision Date: 25 November 1912
• Parties: PACKARD PIANO CO., Appellant, v. GEORGE F. WILLIAMS, Respondent
• Court: Kansas Court of Appeals

151 S.W. 211

167 Mo.App. 515

PACKARD PIANO CO., Appellant, v. GEORGE F. WILLIAMS, Respondent

Court of Appeals of Missouri, Kansas City

November 25, 1912

Appeal from Adair Circuit Court.--Hon. Nat M. Shelton, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Smoot & Cooley for appellant.

1. The contract offered in evidence and under which the property in controversy was delivered by plaintiff to Tallman is a consignment or bailment for sale, and not a sale, conditional or otherwise, and does not create the relation of vendor and vendee between plaintiff and Tallman and is not affected by the provisions of the statute relating to conditional sales and is not required to be filed or recorded. Plow Co. v Porter, 82 Mo. 23; Peet v. Spencer, 90 Mo. 384; Buggy Co., v. Priebe, 123 Mo.App. 521; Brewing Co. v. Linck, 51 Mo.App. 478; Book Co. v Sheridan, 114 Mo.App. 332; In re Columbus Buggy Co., 143 F. 859, cited in Buggy Co. v. Priebe, supra; Engine Works v. Parkinson, 161 F. 223; Safe and Lock Co. v. Tobacco Co., 22 L. R. A., 850; Lenz v. Harrison, 148 Ill. 598; National Bank v. Goodyear, 90 Georgia, 711; State ex rel. v. Thompson, 120 Mo. 12. 2. The property in controversy never was owned by Tallman, therefore could not be subject to his debts. Mansour v. Caulfield, 160 Mo.App. 324, and cases cited under point 1. 3. The instruction requested by plaintiff properly declared the law and the court erred in refusing it. Hoyte v. Davis, 21 Mo.App. 235.

Higbee & Mills for respondent.

The contract offered in evidence and under which the property in controversy was sold to Tallman by plaintiff, is a conditional sale, and not being recorded created the relation of vendor and vendee between plaintiff and Tallman, as far as purchasers and creditors were concerned, because it comes within the provisions of the statute relating to conditional sales and is not recorded as therein prescribed. Sec. 2889, R. S. 1909; Bicking v. Stevens, 69 Mo.App. 168; Studebaker Bros. v. Carriage Co., 152 Mo. 401; In re Rabenau, 118 F. 471; People v. Newman, 57 N.W. 1073; Sutton v. Baker, 97 N.W. 420; 6 Am. and Eng. Ency. Law (2 Ed.), 450, par. 3.

OPINION

ELLISON, J.

--Plaintiff is a corporation engaged in selling musical instruments, and one Tallman was in the retail music business in Kirksville. A creditor of Tallman obtained a judgment against him, upon which execution was issued and placed in the hands of the sheriff, who levied it upon a piano and organ in Tallman's possession. Plaintiff, claiming to be the owner of the instruments, brought this action of replevin against the sheriff. The judgment in the trial court was for the defendant.

Tallman got the property from plaintiff under the terms of a written contract between them and the sole question is whether such paper evidenced a sale by plaintiff to Tallman, or a consignment to sell for plaintiff as its agent. The contract is divided into ten paragraphs or divisions and is so redundant in verbiage as to be confusing. Putting it into smaller compass, we find it provides, in the first division, that the property is to be held by Tallman on consignment until sold and sale approved by plaintiff, Tallman to keep insurance for plaintiff's benefit.

Second: It appears from this division that the property is invoiced to Tallman at a certain price for which he must account to plaintiff in this way, viz., if the sale is for cash, then the invoice price less whatever discount may be agreed upon for cash remitted to plaintiff. If the sale is for notes, he indorses sufficient notes to make the invoice price and twenty per cent more, which per cent is to be credited to Tallman until the notes and interest thereon representing invoice price are collected, when it is to be paid to Tallman. If a sale for notes is not accepted by plaintiff, or if accepted and notes defaulted, then Tallman, on plaintiff's demand, is to take property from the purchaser and deliver to plaintiff if it wants it. If the property cannot be retaken, Tallman is then to pay plaintiff in cash. Other provisions allow plaintiff to retain all notes as security for any indebtedness of Tallman.

Third: It is provided that if Tallman should fail to indorse a note, plaintiff is authorized to do so for him.

Fourth: Tallman is to pay all freight and taxes.

Fifth: Provides that notes shall stand as security to plaintiff.

Sixth: Provides that all property retaken from purchasers plaintiff may, if it so desires, reconsign to Tallman.

Seventh: If any property is returned to plaintiff, Tallman is to be credited with the invoice price less ten per cent as liquidated damages for shopwear, etc.

Eighth: Tallman agrees, on demand to deliver back to plaintiff all goods unsold and all notes in which plaintiff may have an interest.

Ninth: Tallman is to make monthly report of all instruments on hand or in possession of prospective purchasers and not paid for.

Tenth: Tallman agrees to assist plaintiff in all collections without charge, and that plaintiff may at all times have access to his books.

We have a statute in this State (Sec. 2889, R. S. 1909) which avoids, as fraudulent, as to creditors, all conditional sales unless acknowledged and recorded, and it has been held in many instances that no disguise under the name of consignment, or agency, will be allowed to evade this statute. [Manufacturing Co. v. Carriage Co., 152 Mo.App. 401; Bicking v. Stevens, 69 Mo.App. 168; In re Rabenau, 118 F. 471.]

On the other hand it has been decided by the Supreme Court and this court that, notwithstanding the statute, there may be consignments for sale, or sale agencies established, where the consignor will remain the owner without the necessity of recording his agreement. [Weir Plow Co. v. Porter, 82 Mo. 23; Peet v. Spencer, 90 Mo. 384, 2 S.W. 434; Wilson-Moline Buggy Co. v. Priebe, 123 Mo.App. 521, 100 S.W. 558.] And so it is elsewhere held. [In re Columbus Buggy Co., 143 F. 859; Lenz v. Harrison, 148 Ill. 598, 36 N.E. 567.]

So the question is, does this contract evidence a sale or a consignment to an agent? It undoubtedly embodies some of...