Scharff v. Meyer
| Decision Date | 17 March 1896 |
| Citation | 34 S.W. 858,133 Mo. 428 |
| Parties | Scharff et al., Appellants, v. Meyer et al.; Union National Bank of New Orleans, Interpleader |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Reversed and remanded.
Phillips Stewart, Cunningham & Eliot for appellants.
(1) The court erred in giving interpleader's instruction. This declares the law to be that after defendant had sold goods deliverable at their plantation, and after they had delivered them there and the boat on which they were delivered had given bills of lading which made the goods deliverable by the boat to the vendees, defendants could thereafter, without any indorsement of bills, but by mere delivery of them to the interpleaders, pass to the interpleader title to the goods. Benjamin on Sales [6 Am. Ed.], secs. 362, 380, 389, p. 349 and American note; Smith's Lead. Cas. 388; Revised Code, La. (1876), secs. 2482, 2485; R. S. Mo. (1889); secs. 744, 745; Bank v. St. Louis, etc., Co., 11 Mo.App. 333; Erie & Pacific Dispatch v. St. Louis Cotton, etc., Co., 6 Mo.App. 172; Schendler v. Smith, 18 La. Ann. 476; Graff v. Foster, 67 Mo. 512; Calhoun v. Paule, 26 Mo.App. 174; Meyer, etc., Drug Co. v. McMahan, 50 Mo.App. 18. The delivery may be entirely sufficient to pass the title, as even against a stoppage in transitu, even when there is not a final acceptance. Smith v. Hudson, 6 Best & Smith, 431; Meredith v. Meigh, 2 El. & Bl. 364; Hart v. Bush, El., Bl. & El. 494; Hunt v. Hecht, 8 Exch. 814; Frostberg Mining Co. v. N. E. Glass Co., 9 Cush. 115; Spencer v. Hale, 30 Vt. 314; Gibson v. Stevens, 8 Howard (U.S.), 384. Upon the delivery made, as in this case, the risk passed to the vendee, and the vendors could have maintained an action for goods sold and delivered, even if the goods had never reached St. Louis; and on the other hand the vendee could have sued for conversion. Armentrout v. Railroad, 1 Mo.App. 158; Stafford v. Walker, 67 Ill. 83; Grove v. Brien, 8 How. 438; Lawrence v. Minturn, 17 How. (U.S.) 100; Leonard v. Davis, 1 Black (U.S.), 476. The "transitus" ends upon actual delivery, or circumstances equivalent. Buckley v. Farriss, 15 Wendell, 137; Correll v. Hitchcock, 23 Wendell, 611. The interpleader can recover only on the strength of his own title. Teichman & Co. v. Bank, 27 Mo.App. 676; Boller v. Cohen, 42 Mo.App. 97. (2) The court erred in refusing the second instruction asked by the plaintiff, and in holding that although interpleader had full right to pay itself out of defendant's money in its hands, and although it was advised of the plaintiffs' claim and lien upon the property in controversy, it could give up the fund in its hands to which plaintiffs had no recourse, and collect its debt from the goods in question to plaintiffs' prejudice. Story, Eq. Jur. [13 Ed.], sec. 633; Gusdorff v. Ikelheimer, 75 Ala. 148; Depeyster v. Hildreth, 2 Barb. Ch. 109; Pillman's Appeal, 48 Pa. 315; Broadbent v. Barlow, 3 DeG., F. & J. 570; Hamilton v. Schwehr, 34 Md. 107; Rice v. Harbison, 63 N.Y. 493; Hastings' Case, 10 Watts, 303; Sims v. Albea, 72 Ga. 751; Ingalls v. Morgan, 10 N.Y. 178; Glass v. Pullen, 6 Bush, 346; Cheeseborough v. Millard, 1 Johns. Ch. 409; Paxton v. Harrier, 11 Pa. St. 312; Parkman v. Welch, 19 Pick. 231; Alexander v. Welch, 10 Ill.App. 181; Mount v. Potts, 23 N.J.Eq. 188; Teaff v. Ross, 1 Ohio St. 469; Welch v. Beers, 8 Allen, 151.
T. K. Skinker for interpleader, respondent.
(1) The delivery of the bills of lading passed title to the sugars to the interpleader, notwithstanding they were made out in the names of the St. Louis merchants as consignees, and were not indorsed by them. First. Because delivery without indorsement is sufficient to pass title at the law merchant. Bank v. Homeyer, 45 Mo. 145; Valle v. Cerre, 36 Mo. 575; Porter on Bills of Lading, sec. 496; Bank v. Railroad, 58 N.H. 203; Weyand v. Railroad, 75 Iowa 578; Holmes v. Bank, 87 Pa. St. 525; Bank v. Jones, 4 N.Y. 497; Bank v. Wright, 48 N.Y. 1; Allen v. Williams, 12 Pick. 297; Emery v. Bank, 25 Ohio St. 360; Jordan v. Railroad, 31 Alb. L. J. 250. The law merchant has always prevailed in Louisiana. Kirkman v. Hamilton, 9 Mart. 300; Phelps v. Bank, 2 La. App. (McGloin) 19. Second. Section 2482, Louisiana Code, being a statute in affirmance of one branch of the rule established by the law merchant without negative words, the other branch remains in full force. Sedgwick on Stat. Law [2 Ed.], pp. 29, 30; Shaw v. Railroad, 101 U.S. 565; Stagg v. Linenfelser, 59 Mo. 336; McQueen v. Manufacturing Co., 16 John. 4; Baker v. Baker, 13 Cal. 87, 95; Brown v. Barry, 3 Dallas, 365; Crowell v. Van Bibber, 18 La. Ann. 637; Blackman v. Wheaton, 13 Minn. 326; Clark v. Bank, 47 Mo. 17; Crittenden v. Wilson, 5 Cow. 165; Barden v. Crocker, 10 Pick. 384; 1 Kent, Com., side p. 467, note b; District Tp. v. Dubuque, 7 Iowa, 262. It does not make indorsement necessary. Phelps v. Bank, 2 La.App. 19; Bank v. Ross, 9 Mo.App. 399; Conrad v. Fisher, 37 Mo.App. 367; Skilling v. Bollman, 73 Mo. 665; Graham v. Ledda, 17 La. Ann. 45; Hall v. Ship Chieftain, 9 La. 322; Halsey v. Warden, 25 Kan. 128. The rule is general that all choses in action pass by delivery only. Boeka v. Nuella, 28 Mo. 182; Bennett v. Pound, 29 Mo. 599; Davis v. Carson, 69 Mo. 609; Chapman v. McIlwrath, 77 Mo. 38; Quigley v. Bank, 80 Mo. 289. Third. There is nothing in the contracts made by Meyer & Company through Hopkins with the St. Louis merchants, which disabled Meyer & Company from negotiating these bills of lading. Some call for deliveries at St. Louis; some provide that Meyer & Company may draw for the price of the sugars with bill of lading attached; all were sales by sample, and therefore passed no title to the sugars till they were received and approved. Benjamin on Sales, secs. 594, 595, 703; Callahan v. Morse, 37 Mo.App. 204. (2) The fact that since the failure of the drawees to pay the drafts the interpleader has had in its hands cash deposits of defendants at times sufficient to pay its whole claim against defendants, arising out of the discount of the drafts can not defeat the interpleader's claim. First. Because appellants, having been at the time of the levy, general creditors only, can not invoke the equitable doctrine relating to the marshaling of securities. Adam's Equity, side p. 271; 1 Pomeroy's Eq. Juris., sec. 396; Burgess v. Hitt, 21 Mo.App. 313; Coburn v. Stephens, 36 N.E. 132. Second. By the statute of Louisiana the interpleader has no right to appropriate the current deposits of defendants to the payment of defendants' drafts held by it. La. Code, 1889, arts. 2210, 2956; Gordon v. Muchler, 34 La. Ann. 604; Morgan v. Lathrop, 12 La. Ann. 257; Bloodworth v. Jacobs, 2 La. Ann. 26; Breed v. Purvis, 7 La. Ann. 53; Bogert v. Edgerton, 11 La. Ann. 73; Murdock v. Bank, 23 La. Ann. 113; Hancock v. Bank, 32 La. Ann. 590. Third. Article 20 of the by-laws, in terms, applies only to "notes," not to bills of exchange, as some of the other by-laws do. Moreover, it is void because in conflict with the statute. Gordon v. Muchler, 34 La. Ann. 606; U.S. Rev. Stat., 1875, sec. 5136; Presbyterian, etc., Fund v. Allen, 120 Ind. 593; Bergman v. Bldg. Ass'n, 29 Minn. 275; Legion of Honor v. Perry, 140 Mass. 592; Bullard v. Bank, 18 Wall. 589; State v. Curtis, 9 Nev. 325; Matter of Long Island Railroad, 19 Wend. 37; State v. Tudor, 5 Day, 333; State v. Williams, 75 N.C. 134; Harrington v. Association, 70 Ga. 341; Came v. Brigham, 39 Me. 55; Clark's Case, 5 Coke, 64; Moore v. Bank, 52 Mo. 377; Weatherby v. Society, 76 Ala. 567; Kent v. Mining Co., 78 N.Y. 182. It is immaterial that Adolph Meyer, a member of the firm, was a stockholder in the bank. His position as stockholder did not enable him to waive or do away with the statute. Nor is there anything to show that he attempted to waive the statute, or consented to the by-law. Morawetz on Corporations, secs. 491, 494, 496; Cummings v. Webster, 43 Me. 192; Kent v. Mining Co., 78 N.Y. 159; Brewster v. Hartley, 37 Cal. 15; Great Falls, etc., Co. v. Harvey, 45 N.H. 292. Moreover, appellants, being strangers to the Union National Bank, could not avail themselves of its by-law if it were valid. Flint v. Pierce, 99 Mass. 68; Came v. Brigham, 39 Me. 35; Bullard v. Bank, 18 Wall. 589; Coyle v. Father Matthew Society, 17 Week. Dig. 17; 31 Hun, 53; State v. Tudor, 5 Day, 333; Cross v. Bank, 1 R. I. 39; Reid v. Manufacturing Co., 40 Ga. 98; Com. v. Turner, 1 Cush. 493. Fourth. Even if the interpleader had a right to appropriate the current deposits of Meyer & Company to the payment of the St. Louis drafts, still he is under no obligation to do so, and appellants are in no position to compel him to do so. Citizens Bank v. Carson, 32 Mo. 191. An indorser or surety has no such right, much less a mere creditor. Bank v. Smith, 66 N.Y. 271; Voss v. Bank, 83 Ill. 599; Martin v. Bank, 6 Harr. & J. 235; Bank v. Legrand, 103 Pa. St. 309; Marsh v. Bank, 34 Barb. 298; Strong v. Foster, 17 Com. B. 201; Duncan v. Bank, 27 Week. Rep. & Dic. 521; Thatcher v. Bank, 5 Sandf. 121; Bank v. Hanson, 34 Neb. 455; Fourth National v. Bank, 68 Ill. 398.
This is an action by attachment. Under the writ, six hundred and nineteen barrels of sugar were seized as the property of defendants. The sugar was sold under order of the court, and the proceeds arising from said sale paid into court. The Union National Bank, of New Orleans, interpleaded, claiming the fund. The controversy is between the plaintiffs as attaching creditors, who seized the sugar by attachment as the property of V. & A. Meyer & Company while on the vessel upon which it was shipped, and the interpleader who claims the fund under assignment of...
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