Reynolds v. Beck

• Decision Date: 15 November 1904
• Citation: 108 Mo. App. 188,83 S.W. 292
• Court: Missouri Court of Appeals
• Parties: REYNOLDS v. BECK.

83 S.W. 292

108 Mo. App. 188

REYNOLDS v. BECK.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

FRAUDULENT CONVEYANCES — SALES OF CHATTELS — CHANGE OF POSSESSION — DURATION.

1. Whether Rev. St. 1899, § 3410, requiring sales to be accompanied by delivery and followed by an actual change of possession, has been complied with in a given instance, is a question of law for the court, where the evidence is undisputed as to performance or nonperformance of the acts essential to a valid sale, but where the testimony leaves room for doubt the question is for the jury.

2. Under Rev. St. 1899, § 3410, requiring sales of goods to be accompanied by delivery in a reasonable time, and to be followed by an actual and continued change of possession the delivery must, if possible, be real, and exclusive in the vendee, and the change of possession must be actual, and not in trust for the vendee, and continued instead of transient.

3. Plaintiff bought a carriage from the owner of a livery stable, and took it into his actual possession, and kept it for two months. Afterwards, business growing dull, and being crowded for room, he sent it back, with a team, to the seller, paying a monthly board for the team. The seller let the carriage and team out for weddings and funerals, and other occasions, and retained a part of the fee, accounting to plaintiff for the balance. He kept teams and vehicles of other persons under similar arrangements, and had kept other teams and carriages belonging to plaintiff for several years on the same terms. The good faith of the transaction was not questioned. Held, that the sale to plaintiff was not void, as a matter of law, against a subsequent mortgagee from the seller, under Rev. St. 1899, § 3410, requiring sales to be accompanied by delivery, and by an actual and continued change of possession.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by William G. Reynolds against Henry W. Beck. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. F. Beck and W. A. Kinnerk, for appellant. Sloan Pitzer, for respondent.

GOODE, J.

Action of replevin for possession of a carriage, and damages for its detention. Both parties claim title and right of possession under Edward T. Howard — the appellant, by virtue of a mortgage executed by said Howard August 8, 1901; and the respondent, by purchase from him in 1899. For years Howard has conducted a livery stable in the city of St. Louis, at No. 2801 Laclede avenue. He bought the carriage in 1897 from Cunningham & Sons for $1,000, and was proven beyond doubt to have sold it to Reynolds, the respondent, in 1899, for $700. The good faith of that transaction is not in contest on the appeal. The question here is whether the sale to Reynolds must be held void, in law, because in conflict with the section of the statute against fraudulent conveyances, which requires a sale of goods and chattels to be accompanied by delivery of possession in a reasonable time, and followed by an actual and continued change of possession of the thing sold, to prevent it from being fraudulent and void as against creditors of the vendor and subsequent purchasers in good faith. Rev. St. 1899, § 3410.

There was testimony that Beck, the appellant, took a mortgage on the carriage, as stated, August 8, 1901, for a debt Howard owed him for produce, and to indemnify him as surety for Howard on a lease. As Reynolds' purchase preceded the mortgage by two years, it, of course, vested the title securely against the mortgage lien, unless the statute was disregarded. Beck contends it was disregarded, and so obviously that the court should have declared the sale to Reynolds void, without submitting the issue to the jury. To support this proposition these facts are relied on: Reynolds bought and paid for the carriage, and on the same day had it sent to his own stable, on Spruce street. He kept vehicles and teams for hire at different stands in the city. After the carriage had remained in his actual possession and at his stable for two months, he sent it and a team back to Howard's stable to board at an agreed rate — $32 a month. This was done, Reynolds said, for two reasons: He had insufficient room in his stable, and, business having grown dull with him, he thought he would get more custom for the carriage at Howard's stable. It was arranged that if it was let out at Howard's for weddings, funerals, or other occasions, the latter should have 10 per cent. of the fee. Howard sometimes collected the full fee, and credited it on the account for board. It was shown that he kept teams and vehicles of other persons under similar arrangements, and had kept two other teams and carriages belonging to Reynolds for several years on the same terms. Reynolds continued to hire the carriage, and it was driven by his drivers. He paid for all repairs made on it, though sometimes these were ordered and paid for in the first instance by Howard. There was evidence to establish all the facts related, and there is little dispute about the facts of the sale of the carriage to Reynolds, and what followed. Pursuant to the stated understanding, the carriage remained in Howard's stable from 1899 until it was delivered by the sheriff to Beck under a writ of replevin sued out by him November 19, 1903, in enforcement of the mortgage of August 8, 1901, which had been given meanwhile by Howard to Beck. Reynolds, in turn, replevied it from Beck in this action. There was testimony that the mortgage, in which the description is ambiguous, covered the carriage in litigation, though Howard swore it did not, but a different vehicle — an immaterial issue here. It does not appear that Beck was misled by Howard's original ownership of the carriage, or that he would not as readily have accepted security from Howard on either of the other vehicles Reynolds had in the stable, if it had been offered. What we have to dispose of is the proposition advanced by appellant's counsel, that the court below ought to have held the sale to Reynolds conclusively fraudulent and void, in law, as against the mortgage, instead of leaving its validity to the jury. Legal instead of actual fraud is relied on to vitiate the sale. The court submitted the question of whether the statute had been complied with to the jury by instructions very favorable to the appellant, and affording him no just ground of complaint, if the decision of that matter could properly be left to the jury. The substance of those instructions was that unless Reynolds bought the carriage from Howard on August 7, 1899, and within a reasonable time thereafter, regard being had to the nature and situation of the property, possession of it was delivered to Reynolds, and within such time the latter took actual, exclusive, open, notorious, and unequivocal possession, and thereafter continued in such possession and control until the date of Beck's mortgage, the verdict should be for Beck. An unqualified order for a verdict in his favor was requested and refused, and of this ruling complaint is made.

Whether the statute in regard to sales of goods and chattels was complied with or not, in a given instance, may be a question of fact for the jury, or of law for the court; and whether it is the one or the other depends, as in all litigation, on the uniformity or the diversity of the evidence touching the point, and the possibility of drawing one or more conclusions from it. Claflin v. Rosenberg, 42 Mo. 439, 97 Am. Dec. 336; Huggins Cracker & Candy Co. v. Ellis, 45 Mo. App. 585. If the evidence is unvarying, and suggests only one fair inference regarding performance or nonperformance of the statutory acts essential to an invulnerable sale, the result is a legal one, which the court must declare. But if the testimony leaves room for doubt or for diverse beliefs on the question of whether the statute was complied with, the jury must decide. Leeser v. Boekhoff, 33 Mo. App. 223. There are sales of chattels wherein there is a well-meant attempt to comply with the statute, but the accompanying acts are of a character to leave it uncertain whether, in truth, that open, visible, and continued change of possession occurred which the law exacts, sufficient to apprise the community of the changed ownership; and then the opinion of business men on the question is likely to be more valuable than a judge's. We doubt if Reynolds' title might not have been declared prima facie valid, and are positive it could not be denounced as fraudulent and void in law. That he openly and visibly took possession of the carriage when he bought it, removed it to his own premises, put his own drivers on it, kept it in his own custody, and handled it exclusively through his employés for two months or more, was established beyond dispute. The exigencies of business made it advantageous thereafter for him to keep it and the team that drew it in Howard's stable, as he did other vehicles and teams, and as other owners of similar property did. Howard stored vehicles and handled teams belonging to other people, as well as his own. That was part of his business, as it is of liverymen in general, and is known to be. Reynolds did what is usually done after the sale of a chattel to assert and manifest title to his purchase. His possession was attended with unmistakable signs of ownership, which must have notified the neighboring community that the carriage no longer belonged to Howard, but to him. The stress of the argument for the appellant is laid on the word "continued," in the statute; and the appeal calls for a determination, in some measure, of the effect of that word in fixing the kind of possession that will satisfy the statute. The language of the clause to be interpreted is: "Every sale made by a vendor of goods and chattels in his possession, or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property, and be followed...