State ex rel. Sondheimer Company v. Stone
| Decision Date | 07 March 1905 |
| Citation | 85 S.W. 950,111 Mo.App. 364 |
| Parties | STATE ex rel., SONDHEIMER COMPANY, Appellant, v. STONE, Respondent |
| Court | Missouri Court of Appeals |
Appeal from New Madrid Circuit Court.--Hon. Henry C. Riley, Judge.
Defendant Stone is the sheriff of New Madrid county. The other defendants are sureties on his official bond. The suit is for an alleged breach of said bond in levying upon and afterwards selling certain lumber in the millyard of the Dimension Lumber Company, in New Madrid country, under a writ of attachment sued out in the circuit court of said county by one Greundle, against the Dimension Lumber Company in whose millyard the lumber was levied upon. The plaintiff, E Sondheimer Company, is an Illinois corporation dealing in lumber and had been buying lumber from the Dimension Lumber Company at its mill for some months.
The testimony shows that the usual course was that plaintiff's agent would buy lumber sawed at the mill and he, together with the secretary or agent of the Dimension Company, would measure said lumber and pay for it and leave it in the mill yard, that during the interim between the measuring and paying for one lot of lumber, the men constituting the Dimension Lumber Company would then stack the lumber theretofore bought in the yard and upon plaintiff's agent's next visit to the mill he would mark or brand the lumber as the property of this plaintiff that the plaintiff had bought and paid for, but not branded the lumber levied upon. In this particular instance plaintiff's agent testified he had bought, measured and paid for the lumber levied upon August 16; that when he measured the lumber he left it on the ground for the Dimension Lumber Company to stack as the company did not have men to stack it when is was measured; that he went there and measured it, it was paid for and it was to be stacked between that time and his next visit; that this was all he did when he took up the lumber in this controversy; that he did not mark or brand the lumber and it was not branded or marked when the sheriff levied upon it; that after the lumber was levied upon it was branded; that no one was in charge of the lumber but the mill men from whom it was bought; that the reason it was not branded when taken up was because it could not very well be branded until it was stacked.
Nothing in the case discloses when the levy was made and no word of evidence indicates how long it continued in possession of the mill men after the alleged purchase and before the levy, but it is evident that it so remained for some days, at least.
The answer admitted the levy and sale as alleged and denied that at the time thereof the plaintiff owned the lumber.
Defendant on cross-examination of plaintiff's agent who bought the lumber, sought to show some kind of a conspiracy between him and the secretary of the Dimension Lumber Company to take possession of the property of the Dimension Lumber Company and run it for their mutual benefit, but failed in this and no evidence was introduced thereon. The defendant was the only witness on the part of the defense. Defendant testified that he went to the mill of the Dimensinon Lumber Company with the writ of attachment, accompanied by Greundle, the plaintiff in attachment, and found a lot of lumber laying in piles along the sides of the tramroad from the saw, also in a number of different stacks or small piles; that the lumber in piles and stacks along the side of the tramroad was unbranded; that the balance of the lumber stacked was branded "Sondheimer Co;" that this was not touched; that he attached the unbranded lumber only; that a great portion attached was not stacked at all; that the mill men were in charge; that when he first levied the attachment they told him it all belonged to Sondheimer Company and then retracted that statement; that Barnes and Taylor said that the lumber in stacks was Sondheimer Company's; that he asked "old man Craigh" if it belonged to Sondheimer Company (all of said parties were the mill men constituting the Dimension Lumber Company) and he said: "It may be;" that was about the answer he made; that no one seemed to be in charge of it except the three men at the mill; that Barnes, the secretary, seemed to have more to say than anybody else; that he claimed the stacked lumber and the other two men claimed it was the Dimension Company's lumber, except that in stacks; that sometime after the levy some one branded the lumber "Sondheimer Co.;" that at the sale of the lumber, Barnes, one of the mill men bought it in and paid for it with his sister's check.
On cross-examination, defendant said he did not exactly know which was Sondheimer Company's lumber; that at first he was told all of it was and then that was retracted and he was told only that in stacks belonged to Sondheimer Company; that he found some of it branded; that he did not levy on any of the lumber that was branded or marked; that sometime after the levy he met plaintiff's agent in Portageville and in a jocular conversation said to him, "I have grabbed some of your lumber."
The court instructed the jury on behalf of the plaintiff and at its request, that plaintiff was entitled to recover, if the jury found that Sondheimer Company was the owner of the lumber in question; that it had measured up, received and paid the Dimension Lumber Company for said lumber prior to the levy; second; that the only question for the jury's consideration was whether or not at the time of the levy and sale the lumber was owned by the Sondheimer Company; third, in regard to the proof of agency of the man who is alleged to have sold the lumber to Sondheimer Company for the Dimension Lumber Company; fourth, that it was the duty of the sheriff to ascertain the owner of the property on which he made the levy and the fact that the plaintiff did not notify the sheriff that it was the owner thereof furnished no excuse to the sheriff for making the levy; fifth, that fraud is not to be presumed, but must be proved; that the burden of proving fraud was on the defendant and unless the jury believed Sondheimer Company had fraudulently entered into an agreement with the Dimension Lumber Company or its agent by which the property of the Dimension Company was to be disposed of to the Sondheimer Company for the purpose and with the intent of defrauding the creditors of the Dimension Company, the verdict should be for the plaintiff.
The court gave but one instruction on behalf of the defendant, which is as follows:
"The court instructs the jury that the measuring of lumber does not constitute possession unless accompanied by other acts sufficient to constitute actual possession, due regard being had to all circumstances and character of the property."
The verdict and judgment were for the defendant. Plaintiff appealed.
Judgment affirmed.
C. G. Shepard for appellant.
J. V. Conran for respondent.
OPINIONNORTONI, J. (after stating the facts).
Appellant contends that the court erred in permitting counsel for the respondent to cross-examine appellant's agent, who claimed to have made the purchase from the Dimension Company for Sondheimer Company, as to the price paid to the Dimension Lumber Company for the lumber and as to what such lumber was actually worth at the time. There is no force in this contention. Appellant bottomed its case upon the alleged purchase from the Dimension Company. Respondent in his answer denied that the Sondheimer Company owned the lumber, thus putting in issue the purchase and every feature of it. The agent at the appellant's instance had given testimony that he made the purchase and that his company owned the lumber. Respondent certainly had the right to examine and inquire what price was paid, and when and where and how paid, or whether there was anything at all paid, in order to ascertain whether there had been a valid transaction. It might be made to appear by such inquiries that there was no valid purchase of the lumber.
The suit is against the sheriff for the value of the lumber at the time of the levy, which was the true measure of damages. State to use v. Bacon, 24 Mo.App. 403; State to use v. Allen, 12 Mo.App. 566. It was competent...
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