Shelton & Sires v. Thompson Bennett & Company

• Decision Date: 03 November 1902
• Citation: Shelton & Sires v. Thompson Bennett & Company, 70 S.W. 256, 96 Mo.App. 327 (Kan. App. 1902)
• Parties: SHELTON & SIRES, Appellants, v. THOMPSON BENNETT & COMPANY, Respondents
• Court: Kansas Court of Appeals

70 S.W. 256

96 Mo.App. 327

SHELTON & SIRES, Appellants, v. THOMPSON BENNETT & COMPANY, Respondents

Court of Appeals of Missouri, Kansas City

November 3, 1902

Appeal from Grundy Circuit Court.--Hon. Paris C. Stepp, Judge.

AFFIRMED.

Judgment affirmed.

Platt Hubbell, Geo. B. Padget and O. G. Williams for appellant.

(1) "It is the settled doctrine of this court that if upon the pleadings and undisputed facts the judgment is for the right party, there can be no reversal no matter what errors intervened upon the trial. Then, upon the same principle, if the judgment is for the right party, upon the undisputed or admitted facts in the trial court, that court should not disturb the verdict and judgment thereon, notwithstanding error in instructions was made by it." Homuth v Railway, 129 Mo. 642; Ittner v. Hughes, 133 Mo 689; Roe v. Bank, 167 Mo. 406; Richardson v Moffit-West, 69 S.W. 405. (2) At common law four elements constitute a valid sale, and, convey the title to personalty. They are competent parties, mutual assent, an article the property in which is the legal subject of sale, and a price in money paid or promised. There need be no delivery. Smith Personal Prop., secs. 97, 103; Shoe Co. v. Bain, 46 Mo.App. 594; Cunningham v. Ashbrook, 20 Mo. 557; 1 Mechem on Sales, sec. 216; Nance v. Metcalf, 19 Mo.App. 188; State ex rel. v. Durrant, 69 Mo.App. 396; 1 Mechem, sec. 281. (3) "As the statute of frauds affects only the remedy of the party sought to be charged, its benefits can not be claimed by strangers. It is a personal defense, and can only be made by parties to the contract, or by their privies." 9 Ency. of Pldg. and Prac., 703; Book v. Justice, 58 F. 119; 8 Am. and Eng. Ency. (1 Ed.), 659; Railroad v. Clark, 121 Mo. 186; Dock Co. v. Kinzie, 49 Ill. 293; Lewis v. Land Co., 124 Mo. 685; 2 Rap. Law Dict., 1011; 19 Am. and Eng. Ency. Law (1 Ed.), 156; 7 Am. and Eng. Ency. of Law (2 Ed.), 104; Jackson v. Stanfield, 23 L. R. A. 598; Cobbey on Replevin (2 Ed.), sec. 823. (4) This case originated in justice court. The defendant is not required to file any pleading: nor did it in this case. But, if the defendant wanted to invoke the defense of the statute of frauds, the law requires it to object to oral evidence in the trial, or, move to strike out the oral evidence, or, in some other appropriate manner inform the plaintiff and the trial court, during the trial and the taking of the evidence, that it relied on this defense. Scharff v. Klein, 29 Mo.App. 549; Cash v. Clark, 61 Mo.App. 640; State v. Peak, 85 Mo. 190; State v. Fischer, 124 Mo. 463; Browne on Frauds, (1 Ed.), sec. 135; Clement v. Gill, 59 Mo.App. 485; Yeoman v. Mueller, 33 Mo.App. 347; Lafayette B. A. v. Kleinhoffer, 40 Mo.App. 393; Penninger v. Reilley, 44 Mo.App. 262; Carder v. Primm, 47 Mo.App. 306; Hackworth v. Zeitinger, 48 Mo.App. 36; Neuvirth v. Engler, 83 Mo.App. 423; Lammers v. McGeehan, 43 Mo.App. 667; Hobart v. Murray, 53 Mo.App. 254; Davis v. Kroyden, 60 Mo.App. 443; Van Idour v. Nelson, 60 Mo.App. 528; Alter v. Frick, 62 Mo.App. 455; Mfg. Co. v. Clay, 53 Mo.App. 415; Miller v. Harper, 63 Mo.App. 293. (5) That there was a delivery by Bain (the seller) is admitted. The question, on this phase of the case is, whether there was an acceptance and receipt by the plaintiff. Tiedeman on Sales, secs. 114, 115. Sires, acting for plaintiff, went into the presence of Bain and the hogs, went into the place where Bain had delivered the hogs for the plaintiff under the contract, and said, "come on and let's go and weigh them." Tiedeman on Sales, sec. 66; 2 Mechem on Sales, sec. 1366; Bass v. Walsh, 39 Mo. 201; 1 Mechem on Sales, secs. 377, 378; 2 Mechem on Sales, sec. 1364. The elements of acceptance and receipt are illustrated by Harvey v. St. Louis Butchers, 39 Mo. 212; Kaes v. Lime Co., 71 Mo.App. 108.

O. G. Bain & Son, F. J. Chatburn and Harber & Knight for respondents.

(1) There was no sale of hogs from Bain to Shelton & Sires, but only a contract or agreement to sell. No title passed to Shelton & Sires, under this executory contract. And before title could have passed there must have been a delivery to plaintiffs. And a delivery to the stockpens at Spickards, Missouri, was not a delivery to the plaintiffs. Harvey v. Butchers Ass'n, 39 Mo. 212; Thomas v. Ramsey, 47 Mo.App. 84. (2) When there is only an agreement to sell, and the sale is not executed, an action for the possession, can not be maintained; the proper remedy would be an action for damages arising out of the breach of contract. Boutell v. Warne, 62 Mo. 350; Suggett's Adm'r v. Carson's Adm'r, 26 Mo. 221. (3) A contract is only an agreement to sell and does not become a sale if any term in which the seller must co-operate, or which imposes a liability or duty on him remains to be performed, such as inspecting and transporting goods to another place to be there delivered and received. Title does not pass by such executory agreements. Thomas v. Ramsey, 47 Mo.App. 84; Connory v. Wallace, 2 Ala. 542; Kelley v. Upton, 5 Deur. 336; Thomas v. Ramsey, 47 Mo.App. 84; Robinson v. Hirchfield, 59 Ala. 503; Crawford v. Formstall, 58 N.H. 114. (4) An oral executory contract of sale in which none of the requirements of the statute of frauds have been complied with, is not sufficient to pass title from the vendor to the vendee as against the rights of third parties acquired thereunder. Brown on Statute of Frauds (5 Ed.), secs. 138f, 138g, 138h, 138i, 138j; Ely v. Ormsby, 12 Barb. 570; Winner v. Williams, 62 Mich. 363; Hicks v. Cleveland, 48 N.Y. 84; Young v. Blaisdell, 60 Me. 272; Summerall v. Thomas, 3 Fla. 298. (5) Before there can be a delivery under the statute of frauds (R. S. 1899, sec. 3419) there must be an acceptance and receipt of the goods by the vendee. Each of these words has a separate meaning. Hence, to make a complete and valid delivery it requires not only an examination of the goods sold, but an actual change of possession. Cunningham v. Ashbrook, 20 Mo. 553; Harvey v. Butcher's Assn., 39 Mo. 212; Lule v. Shinnebarger, 17 Mo.App. 66. (6) No special defense of the statute of frauds was required in the justice courts. Yeoman v. Mueller, 33 Mo.App. 343; Mullican v. Electric Co., 90 Mo.App. 595; Pattison's Mo. Code Pl., secs. 564, 592; Hillman v. Allen, 145 Mo. 638; Hurt v. Ford, 142 Mo. 283; Van Idor v. Nelson, 60 Mo.App. 523; Springer v. Kleinsorge, 83 Mo. 152; Allen v. Richards, 83 Mo. 55; Bernhardt v. Walls, 29 Mo.App. 206; Wildbohn v. Raubidaux, 11 Mo. 659; Hook v. Turner, 22 Mo. 333. (7) In the action of replevin, as in that of ejectment, where the pleading on the part of plaintiff is a general averment of ownership of the property and a consequent right of possession, any proof on the part of the defendant, which goes to show that the plaintiff, at the time of the commencement of the suit, was not the actual owner, and was not entitled to the possession thereof, is admissible under the general issue, even though it extend to the proof of fraud in the acquisition of plaintiff's title, or that the ownership and right of possession were in a third party. Young v. Glascock, 79 Mo. 574; Schulenberg v. Harriman, 21 Wall. 45; Mather v. Hutchison, 25 Wis. 27; Caldwell v. Bruggerman, 4 Minn. 270; Wheeler v. Billings, 38 N.Y. 264; Bosse v. Thomas, 3 Mo.App. 472; Thomas v. Ramsey, 47 Mo.App. 84. (8) Plaintiffs can not maintain this suit against defendants because there had been no change of possession. R. S. 1899, sec. 3410; Claflin v. Rosenberg, 42 Mo. 439; Wright v. McCormick, 67 Mo. 426; Harmon v. Morris, 28 Mo.App. 326; Thomas v. Ramsey, 47 Mo.App. 84.

OPINION

BROADDUS, J.

--This suit originated in a justice's court, where trial was had, appeal taken to the circuit court of the county, where on trial anew the plaintiff recovered judgment, which the court on motion for a new trial set aside. From this action of the court in setting said verdict aside, the plaintiffs appealed. The action is replevin, to obtain the possession of fifteen hogs, of which, it is alleged, the plaintiffs were the owners, and which the defendants unlawfully withheld. It appears that the parties to the suit are stock-shipping firms doing business at Spickards, Grundy county, Missouri; that on September 2, 1901, J. N. Sires, acting for plaintiffs, went to the farm of one Richard Bain, some distance from said town, and contracted with said Bain, the owner, in behalf of plaintiffs for said hogs at the price of $ 5.37 1-2 per hundred weight, said Bain agreeing to deliver them on September 14, next, at the stockyards of the Rock Island railroad in said town of Spickards. At the time of the said agreement, these particular hogs were selected by Sires and Bain from other hogs of Bain which were in the same pen. There was no writing signed by the parties and no money paid. On said Wednesday, said Bain placed the hogs in said stockyards. At about 8 o'clock a. m., after the hogs had been put in the pens, Sires appeared and wanted Bain to have the hogs weighed. But it was shown that Bain was not willing to weigh the hogs to plaintiffs because Sires had not come sooner for that purpose, he, Bain, claiming that they had shrunk in the meantime, and that to meet this shrinkage the plaintiffs should pay him a larger price per hundred. This Sires, one of the plaintiffs, refused to do. It appears that defendants purchasing agent had offered Bain ten cents more per hundred than the agreed price aforesaid and when Bain asked Sires to pay this additional price, which had been offered by Griffin, who was defendant's purchasing agent, he (Sires), according to Bain's evidence, "just turned around and says, you sell them to him." Bain did sell to Griffin for defendants, the hogs, whereupon the plaintiffs on the fifth of said month instituted these proceedings.

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