Renoe v. Western Star Milling Co.

• Decision Date: 07 April 1894
• Citation: 53 Kan. 255,36 P. 329
• Parties: RENOE v. WESTERN STAR MILLING CO.
• Court: Kansas Supreme Court

36 P. 329

53 Kan. 255

RENOE v. WESTERN STAR MILLING CO.

Supreme Court of Kansas

April 7, 1894

Syllabus

Where a merchant receives a consignment of flour or other goods to sell on commission only for the benefit of the owner thereof he does not hold the property under a conditional sale. Therefore, section 1, c. 255, Sess. Laws 1889, has no application.

Error from district court, Norton county; Louis K. Pratt, Judge.

During the year 1889, Tilden & Baum were doing a general merchandise business at Norton, in this state. On May 10, 1889, they received a consignment of flour from the Western Star Milling Company, doing business at Salina, in this state. On June 17 1889, Tilden & Baum received another consignment of flour from the same company. Tilden & Baum became indebted to J. C. Renoe, and to secure the indebtedness gave Renoe a chattel mortgage on the flour. August 10, 1889, the milling company made a demand on J. C. Renoe for the flour, and on refusal to give it up brought an action in replevin for 27 50-pound sacks of Magnolia flour, 75 50-pound sacks of Snowflake flour, 42 50-pound sacks of Prairie Flower flour, of the value of $155.81. Before the cause was tried, J. C. Renoe died, and J. T. Renoe, administrator of his estate, was substituted. Trial before the court, a jury being waived, at the October term of the court for 1889. Judgment was rendered in favor of the milling company for the flour described in the petition. J. T. Renoe, the administrator, excepted, and brings the case here. Affirmed.

L. H. Thompson, for plaintiff in error.

J.R. Hamilton, for defendant in error.

OPINION

HORTON, C. J. (after stating the facts as above).

The contention is that the Western Star Milling Company made an absolute sale of the flour in controversy to Tilden & Baum and that they had authority to execute a chattel mortgage thereon. It is next contended that, if there was no absolute sale, then that there was a conditional sale of the flour, and that such conditional sale was void as to J. C. Renoe, a creditor of Tilden & Baum, under the statute of 1889, c. 255, § 1 (Gen. St. 1889, par. 3916). On the other hand, it is claimed by the milling company that the flour was received and held by Tilden & Baum on commission only, and that there was no absolute or conditional sale made thereof. The trial court seems to have found that Tilden & Baum received and held the flour on commission only. The only writing between the parties reads as follows: "M. Tilden and Baum, Norton, Kas., in account with Western Star Milling Co. for following invoice of flour, etc., to be sold for their account, proceeds to be remitted for as sold. A full statement of sales and amount of flour on hand to be...