Southwestern Freight & Cotton Express Co. v. Plant

• Decision Date: 31 March 1870
• Citation: 45 Mo. 517
• Parties: SOUTHWESTERN FREIGHT AND COTTON EXPRESS COMPANY, Appellant, v. GEORGE P. PLANT et al., Respondents.
• Court: Missouri Supreme Court

45 Mo. 517

SOUTHWESTERN FREIGHT AND COTTON EXPRESS COMPANY, Appellant,

v.GEORGE P. PLANT et al., Respondents.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Jones & Gardiner, for appellant.

I. By their acceptance defendants ratified the verbal sale to Lamb & Quinlin, and the transfer by them to plaintiff, and they surrendered their possession to plaintiffs and made themselves their agents. There was, then, a delivery to plaintiff. (White-house v. Frost, 12 East, 614; Stovell v. Hughes, 14 East, 308; Ellmore v. Stone, 1 Taunt. 458; Mervin v. Vallis, 6 Ellis & Block, 726; Gillet v. Hill, 4 Tyrw. 250; Sto. on Sales, 289; Hurry v. Mangles, 1 Campb. 452; Harman v. Anderson, 2 Campb. 243; Stonard v. Dunkin, id. 344; Hall v. Griffin, 3 M. & S. 732; Barrett v. Goddard, 3 Mason, 107; Chapman v. Searle, 3 Pick. 38; Scudder v. Worster, 11 Cush. 578; Frazier v. Hilliard, 2 Strob. 309; Kemberly v. Patchin, 19 N. Y. 330.)

II. There was an actual delivery and taking possession. (Calkins v. Sargeant, 17 Conn. 154; Jewett v. Warren, 12 Mass. 300; Bates v. Conkling, 10 Wend. 389; Stovell v. Hughes, supra; Shindler v. Houston, 1 Denio, 51; Smythe v. Syms, 5 N. Y. 41; Carlton v. Sumner, 4 Pick. 516.) This is a case in which the doctrine of estoppel applies in all its force. (Gosling v. Binney, 5 Moore & Payne, 160; 7 Bingham, 339; Stonard v. Dunkin, supra; Hall v. Griffin, 3 M. & S. 732.)

George P. Strong, for respondents.

I. Plant & Co. having sold this flour to Lamb & Quinlin for cash, or without any agreement for credit, or any other mode of payment, could not be compelled to deliver it until they were paid for it.

II. Even if defendants had counted out the two hundred barrels of flour, and separated it from a larger number, it did not amount to a delivery, because there was no act by either party which was designed by vendor and accepted by vendee as a delivery of the flour. It was still in vendor's possession, subject to his control and at his risk. (Southwestern F. & C. P. Co. v. Stanard, 44 Mo. 71; 1 Chit. Pl. 147-8; Owenson v. Moore, 7 T. R. 64; Ballard v. Burgett, 47 Barb. 646, 650; Copland v. Bosquet, 4 Wash. C. Ct. 588; Fleeman v. McKean, 25 Barb. 474, 480; Palmer v. Hand, 13 Johns. 434; Bigelow v. Huntley, 8 Verm. 151.)

WAGNER, Judge, delivered the opinion of the court.

Action to recover damages charging the defendants with the unlawful conversion of two hundred barrels of flour, the property of the plaintiff. The record shows that in September, 1867, Lamb & Quinlin contracted with defendants for the purchase of two hundred barrels of flour, at the price of thirteen dollars and fifty cents per barrel; that on the 27th of September, 1867, they gave to Merritt, president of the plaintiff, an order on the defendants for one hundred barrels of the flour; and on the 30th of the same month they gave him an order for the remaining one hundred barrels. On the receipt of these orders, but before their acceptance, the plaintiff issued bills of lading for the flour for shipment east. On the 1st day of October, 1867, Merritt took these orders, and went to defendants' mills and requested their acceptance; defendants' agent, who was in possession of the mills, wrote across the face of each order “accepted;” and Merritt states that the flour was assorted and counted out, and that the agent requested him to remove it, which he agreed to do. On the evening of the same day, Lamb & Quinlin suspended, and have ever since been insolvent; and on the next morning, one of the defendants called on the plaintiff and informed it that, as the flour had not been paid for, it would not be delivered. On these facts the Circuit Court gave judgment for the defendants.

It is contended by the counsel for the appellant that when the flour was counted and the orders accepted, the delivery was complete, and a right of property immediately vested in the purchaser. As it is not shown that there was anything said when the purchase was made about payment, the law presumes the sale was for cash; and in such a case payment and delivery are immediate and concurrent acts, and the vendor has the indisputable right to refuse to deliver without payment. Admit that the counting out and separation amounted to a constructive delivery, so as to vest title in the vendee and make the property at his risk, still actual delivery and change of possession could not be coerced till payment was made. There may be a delivery which will pass the title, but while possession is retained the lien will not be destroyed. This whole subject was considered and the more important cases collated in the Southwestern F. & C. P. Co. v. Stanard, 44 Mo. 71; and the principle stated in that case need not be here repeated. But it is attempted to distinguish this case from, and take it out of, the operation of the doctrine laid down in Stanard's case, on the ground that the rights of a third party--a sub-purchaser--had intervened. The strongest authority that can be found to sustain this view is Whitehouse v. Frost, 12 East, 614. In that case the contract was as follows: “Mr. J. Townsend...