Quinton v. Cutlip

• Decision Date: 27 January 1893
• Citation: 32 P. 269,1 Okla. 302,1893 OK 7
• Parties: QUINTON v. CUTLIP.
• Court: Oklahoma Supreme Court

32 P. 269

1 Okla. 302, 1893 OK 7

QUINTON v. CUTLIP.

Supreme Court of Oklahoma

January 27, 1893

Appeal from district court, Kingfisher county; A. J. Seay, Judge.

Replevin by A. B. Quinton, assignee of Crane & Co., against T. G Cutlip. From a judgment for defendant, plaintiff appeals. Reversed.

Where plaintiff shipped goods to a municipal corporation, but they were wrongfully converted by one who had been an officer of the corporation, and were never delivered to the city plaintiff's rights in such goods were superior to those of an innocent purchaser from such officer.

W. W Noffsinger, for appellant.

R. C Palmer, for appellee.

BURFORD J.

Plaintiffs, Crane & Co., brought their action in the district court of Kingfisher county, in replevin, to recover one set of Kansas Supreme Court Reports from volumes 1 to 42, inclusive. Issues were joined, and a trial had by jury; verdict and judgment for the defendant. The facts deducible from the record show that in the year 1889 the inhabitants of Kingfisher, Okl., met and organized what they were pleased to designate a "city government," and elected one W. A. Wilson mayor, W. E. Hamblin clerk, and P. S. Nagle city attorney, and other persons as a common council. These persons proceeded to exercise the powers and duties of a municipal corporation until the 8th day of July 1890, when a de jure city government was organized, pursuant to the laws of Nebraska then in force in said territory, which de jure government took actual and active control of the affairs of said city, with a complete complement of officers, on the 14th day of July, 1890. The former provisional officers--Wilson, Hamblin, and Nagle--were neither of them officers or agents of the de jure corporation. During the existence of the provisional government, Wilson, Hamblin, and Nagle had a talk in which Nagle claimed the provisional government was indebted to him for legal services, and, if the city would purchase for him a set of Kansas Reports, he would accept the same in payment for his legal services, and release the city. Pursuant to this talk, the following letter was written, and sent the plaintiffs, at Topeka, Kan.: "Kingfisher, O. T., July 8, 1890. George W. Crane, Esq., Topeka, Kansas--Dear Sir: I am instructed by the mayor and council of the city of Kingfisher to order one Compiled Laws of the Statutes of the State, edition of 1889, and the Reports complete of said state. Send the same by express to W. A. Wilson, mayor of the city of Kingfisher. On receipt of books, registered scrip of said city will be forwarded to you, payable three months after date. Respectfully, W. E. Hamblin, City Clerk." In answer, plaintiffs wrote as follows: "July 14th, 1890. W. E. Hamblin, Kingfisher, O. T.--Dear Sir: Your favor of July 8th, ordering a copy of Kansas Statutes and a set of Kansas Reports, received. We are temporarily out of a few volumes of the Reports, but will have them in a few days, when we will forward you the whole lot by freight. We notice you order them shipped by express, but this would be very costly, and the difference in time would not justify it." Again, on July 25, 1890, plaintiffs wrote as follows: "W. E. Hamblin, Kingfisher, O. T.--Dear Sir: We have shipped the books ordered for your city, and have charged the amount as our cash price, but add ten per cent. to cover the discount on the city warrant. If the amount is paid in cash, this amount, of course, is to be deducted. Please send us the warrant as soon as you can, and oblige." The books were packed, and delivered to the Chicago, Rock Island & Pacific Railway Company on July 23, 1890, consigned to W. A. Wilson, Kingfisher, O. T., and charged on the books of Crane & Co. to the city of Kingfisher. They arrived at Kingfisher during the latter part of July, or first part of August, and were taken by the drayman from the railroad depot to Wilson, who directed him to deliver them to Nagle. They were left at Nagle's office, and the charges paid by one Fergueson, a friend of Nagle's. The books remained in the possession of Nagle about three months, and were sold by him to the defendant, Cutlip, for the sum of $97.50. After the shipment of the books the plaintiffs continued to send monthly statements of their account to the city clerk, to which they received no response until February 18, 1891, when they received a letter inclosing a warrant for $3.50 for other goods, and signed by "J. L. Trout, City Clerk," and on the same day they wrote Mr. Trout as follows: "February 18th, 1891. J. L. Trout, Kingfisher, O. T.--Dear Sir: Your esteemed favor of the 14th inst. is received, with $3.50 in scrip, which we have applied to the credit of the city of Kingfisher. We also have an account against the city, which we presume is filed with you, and that should have been attended to before this, and we inclose herewith a duplicate bill, sworn to, being for a set of Kansas Reports and General Statutes of 1889, $164.45. It is now seven months since these goods were sent, and are close cash goods, and should have been settled long ago. Will you please look the matter up, and ascertain for us what has been, or what is intended to be, done in regard to the matter. If there is any disposition on the part of the authorities to refuse to pay the bill, we are perfectly willing to take them back, and obliterate the charges, and will do so on receipt of the goods. Will you kindly write us, and let us know what to expect in the matter. Truly, Yours." To which the following reply was sent: "Kingfisher, March 6, 1891. Gentlemen: Yours, with bill for $164, received. In reply, will say there is no bill on file for the goods mentioned. Please state who ordered the Reports and Statutes, so we may look the matter up. Respectfully, yours, J. L. Trout, City Clerk." Plaintiffs answered as follows: "March 24th, 1891. J. L. Trout, Clerk, Kingfisher, O. T.--Dear Sir: Referring to ours under date of February 18th, 1891, and your postal card replying, under date of March 6th, 1891, we have the pleasure to inclose herewith a copy of original order, covering our voucher for $164.45, which we hope will be found correct and satisfactory with you." In response. plaintiffs received the following: "Geo. Crane & Co.--Gentlemen: Your bill in the sum of $164.45 was not allowed. Please instruct us what to do in the matter. Think we can get the books, or collect for same. Awaiting your advice, I am, respectfully, Victor Payne, City Attorney. Per J. L. Trout, Village Clerk." This closed the correspondence, and constitutes the entire agreement on the subject. The plaintiffs then sent their agent to find the books. They were found in the possession of defendant, Cutlip, and a demand made for their possession, which was refused.

The uncontradicted facts show that, at the time the books were shipped by Crane & Co., they intended to sell them to the city of Kingfisher, and so charged them on their books. The order of the city clerk, Hamblin, stated that the may or and common council of the city had ordered the purchase, and directed them shipped to Wilson, mayor. This order was mailed the day that the board of commissioners made the appointment of officers for the de jure government, and when the order was filed, and the goods shipped, neither Wilson, Hamblin nor Nagle had...