Smith-Frazer Boot & Shoe Co. v. Ware

• Decision Date: 05 December 1891
• Citation: 47 Kan. 483,28 P. 159
• Parties: THE SMITH-FRAZER BOOT AND SHOE CO. v. W. A. WARE, as Sheriff of Osborne County
• Court: Kansas Supreme Court

28 P. 159

47 Kan. 483

THE SMITH-FRAZER BOOT AND SHOE CO. v. W. A. WARE, as Sheriff of Osborne County

Supreme Court of Kansas

December 5, 1891

Error from Osborne District Court.

THE case is fully stated in the opinion.

Judgment affirmed.

James & Johnson, and Walrond, Mitchell & Heren, for plaintiff in error.

Robinson & Lawrence, for defendant in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.

This is an action commenced in the Osborne district court by the plaintiff in error against W. A. Ware, who was sheriff, to recover damages for the wrongful taking possession of and the conversion of certain property. At the October term, 1888 there was a trial by the court, and special findings were made that substantially embody all the material facts. The findings of fact and conclusions of law are as follows:

"FINDINGS OF FACT.

"On the day prior to the 30th day of October, 1886, one H. H Withers was the owner and in the possession of a certain stock of goods and general merchandise in the town of Portis Osborne county, Kansas, and had been doing a general retail business in the building in which the goods and merchandise were situated at the time. Said Withers was indebted to plaintiff in this case, and a large number of other creditors, and shortly before the 30th day of October, 1886, he executed and delivered to the Wm. B. Grimes Dry Goods Company a chattel mortgage for $ 1,249.17 on said stock of goods, and said chattel mortgage was filed for record, in the office of the register of deeds of Osborne county, Kansas, on the 28th day of October of said year, and on the 30th day of October said Withers executed and delivered to plaintiff in this action a chattel mortgage for $ 686.30, which is set up and made a part of the petition in this action, on the same stock of goods and merchandise, and said chattel mortgage was filed for record in the office of the register of deeds of Osborne county, Kansas, at 3:30 o'clock P. M. of the 1st day of November, 1886. The chattel mortgage from Withers to plaintiff was made. executed and delivered about 11 o'clock A. M., at Atchison, Kan., October 30, 1886. On the said 30th day, and about 5 o'clock in the evening of the said day, the defendant, sheriff of Osborne county, Kansas, levied three writs of attachment upon said stock of goods and merchandise. The aggregate amount of the said three writs was something over $ 750; and the order directed the sheriff also to levy upon sufficient amount to cover costs in the probable sum of $ 50. The sheriff levied each of three writs of attachment upon the entire stock of goods, and invoiced the same, and the invoice value was about $ 4,600. Thereafter, and at divers times between and including the 3d day of November, 1886, and the 8th, the sheriff levied these other writs of attachment on said stock of goods and merchandise for other creditors of Withers, subject to the levy of the first writ. The aggregate amount of the last six subsequent writs was about $ 1,389.53, and the probable costs in each case. Some time after the levy of all of said writs the creditors under the three first orders of attachment, and the Wm. B. Grimes Dry Goods Company, by agreement, placed one Buchanan in possession of the stock of goods, not by order of court, but as a sort of an agreed receiver, with the understanding that he should sell the goods at retail, to the best advantage possible, and pay the proceeds into court, to abide the order of the court; and under the arrangement said Buchanan sold about $ 700 worth of goods, but never paid anything into court. Said Buchanan was an employe of said Wm. B. Grimes Dry Goods Company. Afterward, and on the 15th day of January, 1887, the judge of this court, at chambers, appointed J. W. Marshall receiver, to take possession of said stock of goods, to sell the same, and to pay the proceeds into court. Said receiver took possession and made an invoice of the stock, which then invoiced $ 4,022.50, when by leave of the court the Wm. B. Grimes Dry Goods Company commenced an action in replevin in this court against said receiver to recover possession of said goods by virtue of their chattel mortgage, and on the hearing of said case the mortgage of said Wm. B. Grimes Dry Goods Company was adjudged valid, and the court found the right of possession in favor of plaintiff in that action, and that the value of its interest therein was $ 1,365.25. Under the writ of replevin in said action of Wm. B. Grimes Dry Goods Company against the receiver, the possession of the goods and merchandise was by the sheriff delivered to the plaintiff therein, and after the judgment in the case the plaintiff proceeded in that action to sell, and sold until he acknowledged the satisfaction of his mortgage claim, and tendered the remainder of the stock back to the receiver, Marshall, and the receiver accepted of the goods and proceeded to invoice the same, which then invoiced $ 2,559.25, and sold the same for $ 1,605, and making his report of the same to the court, which was approved and his bill of expense for $ 67.75 and $ 125 for his services was allowed, and the balance being paid into court, $ 1,412.25. On the order of the court, said amount was paid as follows: First, all the costs in the attachment, which aggregated $ 117.75, $ 54.95 of which was in the three attachment cases first levied, and $ 62.80 the amount of costs in the six subsequent attachment cases; second, to the payment of the judgment rendered in the first three attachment cases; third, to the payment in fall of the fourth attachment case, which left the remainder $ 500, which was applied on the attachment cases. That is to say, there was $ 718.80 paid out on the order of the court on the attachment suits, besides paying the judgment and costs in full in the first three attachment cases.

"At the time the attachments were levied, on the 30th of October, 1886, the sheriff found in possession of the store and stock of merchandise a man by the name of Knoff, who had possession of the key to the store, Withers being then in Atchison; Knoff had been in and about the store for some days prior to the execution of the mortgage from Withers to the W. B. Grimes Dry Goods Company, and shortly before Withers' departure to Atchison, Withers had employed Knoff to take charge of the store, telling him that he should hold it as the agent of the W. B. Grimes Dry Goods Company, but no agent or person representing the W. B. Grimes Dry Goods Company, unless it be Withers, ever authorized or employed Knoff to hold possession of the store. Two other clerks in the store at the time were clerks who had been regularly and previously employed for some months by Withers. Knoff was employed to take charge of the store only during the temporary absence of Withers, and on Withers' return he paid over to Withers the proceeds of the sales made in the store during his absence. On the 30th day of October, 1886, there was no apparent change in the manner of conducting the business, or the persons in charge, different from what there had been while Withers was conducting the business, except that Knoff had not previously had the keys, but on this day he had not or did not make known the fact, until he was interrogated in reference to it, and, when asked who was the clerk in charge of the business, referred the deputy sheriff to another clerk in the store, who had been there some months under the employment of Withers. There were two keys to the store; the evidence shows that Knoff had one key; whether he had both keys, or where the other key was, the evidence does not disclose. In the mortgage dated October 28, 1886, from Withers to W. B. Grimes Dry Goods Company, the provision in reference to possession is as follows: 'And until default be made as aforesaid, or until such time as the party of the second part shall deem himself insecure, as aforesaid, the said party of the first part to continue in peaceful possession of all of said goods and chattels, as above specified.'

"Prior to that there was this reference to the possession in said mortgage:

"'It is expressly understood and agreed by and between the parties hereto, that H. H. Withers shall have possession of said property only as the agent of the said W. B. Grimes Dry Goods Company, and that he sell said goods for cash only, in the usual course of business, keeping a true account of all the sales and expenses, and shall apply the proceeds of said sales to the payment of the debt hereby secured, and shall at all times, when demanded by the second party, make full and true account of all sales and receipts arising therefrom.'

"And the mortgage from Withers to the Smith-Frazer Boot and Shoe Company, plaintiffs, dated October 30, 1886, has the following provision in reference to the possession of the goods thereunder:

"'It is expressly understood and agreed by and between the parties hereto, that H. H. Withers shall have possession of said property only as the agent of the said Smith-Frazer Boot and Shoe Company, and that he shall sell said merchandise for cash only, in the regular course of business, keeping a true account of all sales and expenses, and shall apply the proceeds to the payment of the debt hereby secured. He shall at all times, when demanded by the second party, make full and true account of all the sales and receipts arising therefrom.'

"And further on there is the following provision:

"'The said possession of the said property heretofore mentioned to be held subject to the possession of the William B. Grimes Dry Goods Company, under the chattel mortgage executed to it October 28, 1886, to which mortgage this is made subject.'

"And further on there is the following provision:

"'And until default be made...