State v. Green Tree Brewery Co.

• Decision Date: 30 October 1888
• Parties: THE STATE to use of NELSON DISTILLING COMPANY, Respondent, v. GREEN TREE BREWERY COMPANY, Appellant.
• Court: Missouri Court of Appeals

32 Mo.App. 276

THE STATE to use of NELSON DISTILLING COMPANY, Respondent, v. GREEN TREE BREWERY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

October 30, 1888

Appeal from the St. Louis City Circuit Court. --HON. JAMES A SEDDON, Judge.

AFFIRMED.

Rassieur & Schnurmacher, for the appellant.

The court erred in the declaration of law, given of its own motion. The condition attached to the sale was utterly void as to defendant the Green Tree Brewing Company. R. S. sec 2505; Coover v. Johnson, 86 Mo. 533. There is a decided difference between a sale, with condition annexed that the title shall remain in the vendor until the goods are paid for, and a sale for cash on delivery. In the latter case, the weight of authority is that if the vendee is placed in possession, without mistake or fraud, the title passes, and the condition is deemed waived. Chapman v. Lathrop, 6 Cow. [N. Y.] 110; Lupin v. Marie, 6 Wend. 77; Foley v. Mason, 6 Md. 37; Bowen v. Burk, 13 Pa.St. 146; Mixer v. Cook, 31 Me. 340.

Muench & Cline, for the respondent.

The brewery company being a prior creditor, section 2505, Revised Statutes, 1879, has no application. There was not only no sale " on condition" of the whisky in controversy, but no sale at all. The title did not pass. That the law justified the judgment under the evidence and instructions abundantly appears from the authorities. Benjamin on Sales [Bennett's Ed.] sec. 320, p. 268; Hammett v. Linnemann, 48 N.Y. 399; Adams v. O'Connor, 100 Mass. 515; Smith v. Lynes, 5 N.Y. [1 Seld.] 43. The sole contention of the appellant is that this must be treated as a sale upon a secret condition, and therefore void under Revised Statutes, 1879, section 2505, as to it, because it happened to be a creditor of Klasing's before the whisky was ordered of relator. Our reply is: (1) That there was here no sale at all, and consequently there were no conditions at all. The payment of the purchase price being a condition precedent, which, not being complied with, prevented the sale from being consummated. (2) The respondent, being a prior, and not a subsequent, creditor, would, under any hypothesis, however inapplicable to the facts in this case, not be within the latter portion of the section of the statute relied on. Knoop ex rel. v. Distilling Co., 26 Mo.App. 316, 317 and cases cited; Land and Cattle Co. v. Plumb, 27 F. 598.

OPINION

PEERS J.

This is a suit on a bond of indemnity given to the sheriff of the city of St. Louis by the Green Tree Brewery Company, which company had brought two attachment suits against one Klasing, the writs being levied upon Klasing's grocery and saloon business, and among other things the two barrels of whiskey in dispute. The Nelson Distilling Company filed a claim for the whiskey with the sheriff, and the brewery company caused the sheriff to retain the whiskey under the levy by executing to him the bond here sued on. The sheriff thereupon sold the property, whereby it is claimed it was wholly lost to the Nelson Distilling Company. The man Klasing, it appears, kept a little saloon on Third street in the city of St. Louis, was in failing circumstances, and when he bought the whiskey either never intended, or at least failed, to pay for it, although the sale thereof was distinctly made for cash. It seems to have been the custom of the distilling company to have their teamsters deliver whiskey sold by them in barrels and afterwards send their collector around for the money. This was generally done a day or two after the purchase, when the sale was understood to be for cash as this one was. When the collector called, which was on the day following the purchase, he found the whiskey on the sidewalk in front of Klasing's place where it had been left the evening before by the driver of the relator. The collector did not obtain the money for the whiskey from Klasing, who admitted that he had not complied with the terms of the sale, and offered to return the whiskey, saying he had no right to keep it; nor did Klasing at any time claim a right to keep it, but on the contrary repeatedly disclaimed all title to it both verbally and in writing filed with the sheriff. The whiskey remained for a day or two after the interview between the collector and Klasing with a view, as it seems, of making some other disposition of it, but it is quite clear from the record before us that the understanding was that the title should not pass by an apparent delivery. The trial court found for the plaintiff upon this state of facts, to reverse which the case comes here by appeal.

The court gave the following instruction at the request of the plaintiff: " The court declares the law to be that, if it appears from the evidence that the two barrels of whiskey were purchased by Klasing from relator, upon condition that the same were to be paid for in cash upon the delivery thereof, and that the same were taken into possession or control...