Reynolds v. Beck

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

83 S.W. 292

108 Mo.App. 188

REYNOLDS, Respondent, v. BECK, Appellant

Court of Appeals of Missouri, St. Louis

November 15, 1904

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

AFFIRMED.

Judgment affirmed.

George F. Beck for appellant.

(1) The actual and continued change of possession contemplated by the statute, must be open, notorious and unequivocal--such as to apprise the community, or those accustomed to deal with the vendor, that the goods sold have changed hands, and that the title has passed from the vendor to the vendee.Lesem v Herriford,44 Mo. 323;Bishop v. O'Connell,56 Mo. 158;Wright v. McCormick,67 Mo. 426;Stern v. Henley,68 Mo. 262;Revercomb v Dunker,74 Mo.App. 570.(2) Whether the change of possession was such as the law requires, is a question for the court and when it appears from the undisputed facts that there was no such change of possession, the court should, as a matter of law, declare the sale fraudulent.Stewart v Bergstrom,79 Mo. 524;Knoop ex rel. v. Nelson Distilling Co.,26 Mo.App. 303;Lesser v. Boekhoff,33 Mo.App. 223;State ex rel. Cuomo v. Hall,45 Mo.App. 298;Cracker & Candy Co. v. Ellis & Co.,45 Mo.App. 585.(3) In Missouri the retention of personal property by the vendor, after sale, amounts to fraud per se, that is conclusive and cannot be rebutted by proof of honesty and fairness in the transaction.R. S. 1899, sec. 3410;Rocheblave v. Potter,1 Mo. 561;Foster v. Wallace,2 Mo. 231;Sibley v. Hood,3 Mo. 290;King v. Bailey,6 Mo. 575;Claflin v. Rosenberg,42 Mo. 439;Rice, Stix & Co. v. Sally,176 Mo. 107, 75 S.W. 398.(4)The statute is not complied with, if before the return of the chattel to the vendor there was not such a change of possession as indicates to the world at large a change of ownership.The change should be such as may fairly lead those around, if they have any interest in the matter, to a reasonable belief that there has been a sale and change of property.The change of possession must also continue for such a length of time as will be likely to operate as a general advertisement of the change of title.Bump on Fraudulent Conveyances(4 Ed.), sec. 124;Houston v. Howard,39 Vt. 54;Chamberlain v. Winnie,11 Nev. 268;Weeks v. Wead, 2 Aiken (Vt.), 64;Morris v. Hyde,8 Vt. 352;Rogers v. Vail,16 Vt. 327;Norton v. Doolittle,32 Conn. 405;Webster v. Peck,31 Conn. 495;Mills v. Warner,19 Vt. 609;Ruddle v. Givens, 76 Cal. 457.

Sloan Pitzer for respondent.

OPINION

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 F. 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. Louisat 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 vendee and subsequent purchasers in good faith.R. S. 1899, sec. 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 propositionthese 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 ten per cent of the fee.Howard sometimes collected the full fee and credited it on 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 1897 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 diversity of the evidence touching the point and the possibility of drawing one or more conclusions from it.Claflin v. Rosenberg,42 Mo. 439;Huggins v. Ellis,45 Mo.App. 585.If the evidence is unvarying and suggests only one fair inference regarding performance or non-performance 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 as 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 Reynold's 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 employees 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....