Rosencranz v. Swofford Bros. Dry Goods Co.

• Decision Date: 09 June 1903
• Citation: 75 S.W. 445,175 Mo. 518
• Parties: ROSENCRANZ v. SWOFFORD BROS. DRY GOODS CO.
• Court: Missouri Supreme Court

75 S.W. 445

175 Mo. 518

ROSENCRANZ v. SWOFFORD BROS. DRY GOODS CO.

Supreme Court of Missouri, Division No. 2.

June 9, 1903.

WRONGFUL ATTACHMENT — JURISDICTION — TROVER—RIGHT OF POSSESSOR—SEIZURE—TRESPASS —CARRIERS—LIEN FOR FREIGHT— ESTOPPEL.

1. Where plaintiff had possession of goods, and delivered them to a railroad for shipment to herself as consignee, and they were attached by defendant in a suit against another, plaintiff's possession gave her a prima facie right to recover in conversion.

2. Defendant, in a suit against his debtor, attached goods in the possession of a railroad company, delivered to it by plaintiff, who had acquired them from the debtor. Subsequently defendant dismissed the attachment suit, and the sheriff delivered the goods to defendant's agents, who removed them to Kansas, where they were levied on under an attachment sued out by defendant in that state. Held, that the acts were fraudulent in law and the Kansas court acquired no jurisdiction.

3. A second attachment, sued out of another Kansas court and levied by the sheriff on the goods while they were in his hands by virtue of the first attachment, was pervaded with the same vice as the first.

4. Defendant, having no title to the goods and no lien thereon, could not be heard to justify its seizure thereof by asserting that the transfer from the debtor to plaintiff was fraudulent toward creditors.

5. The lien of a railroad for freight on goods shipped ceased when the company attempted to assign said lien to one who seized the goods for the debt of a stranger, and therefore the assigned lien was no defense to an action for conversion by the consignor against the attaching creditor.

6. The purchaser of goods, in stating his financial standing, said that he was indebted to plaintiff in a certain sum, but that plaintiff was willing to carry the indebtedness, and not allow it to bother the purchaser, or interfere with his paying other creditors. About two months after selling the goods the seller made inquiry of plaintiff as to the purchaser's statement, and was told that it was correct. Subsequently plaintiff received goods of the purchaser, which the seller attached. Held, in an action of conversion by plaintiff against the seller, that plaintiff was not estopped by his statement.

Appeal from Circuit Court, Jackson County; Edw. P. Gates, Judge.

Action by Bertha Rosencranz against Swofford Bros. Dry Goods Company. From a judgment for defendant, plaintiff appeals. Reversed.

Wollman, Solomon & Cooper, for appellant. Ellis, Cook & Ellis, for respondent.

GANTT, P. J.

This is an action of trover and conversion to recover the value of 13 cases and 7 bales of dry goods, clothing, etc., and was brought and tried in the Jackson circuit court, and resulted in a verdict for defendant. Plaintiff appeals.

On November 4, 1895, one Herman Goldberg, a merchant of Raton, N. M., sold and delivered these goods to the plaintiff, Bertha Rosencranz. Swofford Bros. Dry Goods Company was and is a wholesale clothing house of Kansas City, Mo. Mrs. Bertha Rosencranz, the plaintiff, is a citizen of Chicago, Ill., and her husband a brother-in-law of Goldberg. Goldberg had been dealing with Swofford Bros. for some time prior to August 24, 1895, and that company had sold him goods on credit, but not in large quantities. On the last-mentioned date Goldberg came to Kansas City to buy a bill of goods of Swofford Bros. and others. On that day he made a statement of his financial standing to Swofford Bros., in which it appears his total assets were $7,550, and his liabilities $2,621. Among his liabilities he scheduled a debt for borrowed money to J. B. Rosencranz for $2,-100, and gave as reference J. Rosencranz, 215 Halstead street, Chicago. At the same time he stated that J. Rosencranz was his brother-in-law, and the debt of $2,100 was the balance of purchase price of original stock bought by Goldberg of Rosencranz, and the latter was willing to carry said indebtedness, and not allow it to bother him in paying his other creditors, and thereupon Swofford Bros. sold him goods to the amount of $1,374.98.

On the 2d day of October, 1895, after the shipment of the goods, the creditman of Swofford Bros., in the name of said firm, wrote J. Rosencranz the following letter: "Kansas City, Mo., 10/2/95. J. Rosencranz, 215 Van Buren St., Chicago, Ills.—Dear Sir: In a statement rendered us in August last by Mr. Herman Goldberg, of Raton, N. M., he gave us among his liabilities an indebtedness to you of $2,100.00. He explains to us that you are his brother-in-law, and that this is a balance on the purchase price of the original stock bought from you. He also says that you are willing to carry this indebtedness for him, and not allow it to bother him or interfere with his paying his other creditors. His account with us has so far been satisfactory, and, if his indebtedness to you does not bother him, he offers a fair risk. We would like to hear from you direct as to the correctness of his statement. We inclose stamped envelope for your reply. Yours truly, Swofford Bros. Dry Goods Co. (Dic. W. N. M.)" And on October 6, 1895, received the following reply: "Chicago, Ill., 10/5/95. Messrs. Swofford Bros., Kansas City, Mo.— Gentlemen: Yours of recent date was received by me. Replying to same, I will say that the statement made to you in August last by Herman Goldberg, of Raton, N. M., regarding the indebtedness to me of $2,100.00, was correct. Yours respectfully, B. Rosencranz."

The plaintiff offered evidence that afterwards, on the 3d day of November, 1895, the plaintiff, through her husband, J. Rosencranz, acting as her agent, delivered the goods for whose conversion this action was commenced to the Atchison, Topeka & Santa Fé Railroad Company, a common carrier engaged in transporting merchandise from Raton, N. M., to Chicago, Ill., and received a bill of lading in her favor in due form, whereby said company agreed to deliver said goods to her in Chicago, Ill.; that Kansas City, Mo., is on the line of said railroad between Raton and Chicago; that the defendant, Swofford Bros., on the 7th day of November, 1895, sued out an attachment for $1,385.80 in the circuit court of Jackson county, Mo., at Kansas City, in favor of said Swofford Bros. Dry Goods Company, and against H. Goldberg, on the ground of nonresidence, and under said writ the said defendant directed the sheriff of Jackson county, Mo., to attach and take from the possession of the said railroad company all of the goods described in the petition, and said sheriff, on the 8th of November, 1895, attached and took said goods out of the possession of said railroad company in Kansas City, Mo.; that afterwards, on the 9th day of November, 1895, said Swofford Bros. Dry Goods Company dismissed its said attachment suit, and on the 11th of November, 1895, said sheriff released said goods. No other proceedings were had against said goods in Jackson county, Mo. By direction of the defendant the sheriff turned the goods over to H. Leftwitch, an employé of defendant, and Joseph H. Roy, an employé of defendant's attorneys.

Prior to the commencement of the suit in Jackson county, Mo., the Swofford Bros. Company, having learned of their shipment from Raton, brought an action by attachment in Johnson county, Kan., and summoned the railroad company as garnishee. The sheriff of Johnson county, Kan., did not succeed in seizing the goods, and it was learned they had gone into Kansas City, Mo., where, as already said, they were levied on by the sheriff of Jackson county, Mo., and removed from the cars. It seems this seizure aroused the railroad company, and Swofford Bros., anxious to avoid controversy with the railroad, which had a lien for its freight charges, stipulated that the railroad should receive its earned freight. Thereupon Joseph H. Roy took an assignment from the railroad company of its claim for freight lien on the goods, and the goods were then delivered to Mr. Leftwitch, an employé of defendant, Swofford Bros., under the direction of their attorneys. After that the suit in Jackson county, Mo., was dismissed. Thereupon, by direction of Swofford Bros., or their attorneys, the goods were then placed in wagons and driven across the state line into Kansas. The money which was paid by Roy to satisfy the freight bill was paid by Swofford Bros. When they reached Kansas, Cummins, the deputy sheriff of Wyandotte county, Kan., under the direction of Swofford Bros., levied upon the goods. They were marked "B. Rosencranz, Chicago, Ill." This levy was made under a writ of attachment issued by the clerk of Johnson county, Kan., in the suit commenced there as already noted. It seems no publication was made in this suit within the 40 days required by the laws of Kansas, and subsequently this suit, like the one in Jackson county, Mo., was also dismissed, and no further steps taken in it; but prior to its dismissal, and while the goods were still in the hands of the sheriff of Wyandotte county, Kan., Swofford Bros. Dry Goods Company, the defendant herein, brought still another action in attachment in the common pleas court of Wyandotte county, Kan., against Goldberg, and by its direction the sheriff of that county levied upon the same goods then in his hands. Constructive service by publication was then obtained in this last-mentioned case, and judgment taken, and the goods sold and bought in by defendant. There was no appearance by Goldberg or Mrs. Rosencranz in any of the cases.

Thereupon, on January 23, 1896, plaintiff brought this her action against Swofford Bros. for conversion. The defendant in its answer pleaded, first, a general denial; second, an estoppel on the part of plaintiff by reason of her agreement not to enforce her debt in preference to Goldberg's other creditors; third, a lien for the amount of the freight paid by defendant; fourth, that the transfer by Goldberg to plaintiff in New Mexico was by the laws of that...