Rankin v. McFarlane Carriage Co.

• Decision Date: 10 June 1903
• Citation: 75 S.W. 221
• Parties: RANKIN v. McFARLANE CARRIAGE CO.
• Court: Kentucky Court of Appeals

75 S.W. 221

RANKIN v. McFARLANE CARRIAGE CO.

Court of Appeals of Kentucky.

June 10, 1903

Appeal from Circuit Court, Anderson County.

"Not to be officially reported."

Action by J. W. Rankin against Clay Brown, to which the McFarlane Carriage Company became a party by petition. From a judgment for the carriage company, plaintiff appeals. Reversed.

Ira Julian and L. W. McKee, for appellant.

F. R Feland, for appellee.

BURNAM C.J.

In January, 1901, the appellee, the McFarlane Carriage Company shipped some twenty odd vehicles, including the five in controversy, to Clay Brown, who was engaged in the business of buying and selling buggies, carriages, surreys, and other vehicles in his own name, at Lawrenceburg, Ky. under a contract that provided: "That the title to and ownership of all goods shipped under this contract, or the proceeds of the sale thereof, should be and remain the property of the McFarlane Carriage Co., and subject to their order at any time they may deem themselves unsecured, and until all the conditions of this contract are complied with, including the final payment in full in money for all said goods. But nothing in this contract is to serve as a release from making payment in full as herein agreed. *** Notes taken by the McFarlane Carriage Co., under this contract, are not accepted by this company as payment, but merely as evidence of liability and of the amount due." Brown further stipulated that he was to pay for each vehicle shipped at invoice price in cash, less 3 per cent. discount as soon as sold, and to keep the vehicles fully insured for the benefit of the McFarlane Company. This instrument was not recorded. And on the 18th of May, 1901, Brown, representing himself to be the owner of these vehicles, executed a chattel mortgage on five of them to appellant, as security for the loan of $326.59, which was borrowed for the purpose of paying freight on the shipment to the railroad company. On the 27th of May 1902, the appellant, Rankin, brought this suit for an enforcement of his lien against Brown, and also alleged that the defendant had sold two of the mortgaged vehicles, but had failed to account for the money received thereon, and that unless prevented, the whole would be disposed of, and asked for a specific attachment against the mortgaged property. The McFarlane Carriage Company, on their own petition, were made a party to this proceeding, and filed an answer and cross-petition, in which they set up the contract of sale with Brown,...