Sumner v. Cottey

• Decision Date: 31 October 1879
• Parties: SUMNER v. COTTEY, Appellant.
• Court: Missouri Supreme Court

71 Mo. 121

SUMNER

v.COTTEY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Knox Circuit Court.--HON. JNO. C. ANDERSON, Judge.

AFFIRMED.

L. F. Cottey for appellant.

W. C. Hollister for respondent.

HENRY, J.

The plaintiff sued for $265 damages for the conversion of an organ. Defendant's answer denied plaintiff's ownership, and alleged that he purchased the organ of W. C. Ray, at the price of $165, which he paid; that at the time of the sale Ray had the actual and notonous possession of the organ, claiming it to be his own, and that defendant, believing him to be the owner, purchased it, not having any notice whatever that plaintiff had or pretended to have any claim to it; that at the time of the purchase from Ray and payment for the organ, Ray was the legally authorized agent of plaintiff to sell organs and sewing machines in Knox county, Mo.; that at the time of the sale and payment of the purchase money as aforesaid, plaintiff had no lien on said organ in writing, proved or acknowledged and recorded as required by law. The cause was tried by the court, and there was a finding and judgment for plaintiff, from which defendant has appealed.

The evidence for plaintiff proved a lease in writing of the organ by A. Sumner & Co. to Ray, May 17th, 1877, at $10 per month, payable monthly in advance, to be used only by the family of said Ray, at his residence in Edina, Missouri, and not to be removed therefrom without the consent of said company in writing, said company reserving the right to terminate the contract at any time on failure to pay the rent, or when they should fear for the safety of the organ, Ray agreeing to take good care of and return it in good order to said A. Sumner & Co. at the expiration of the term for which the rent should be paid in advance. Ray also had the privilege, at any time during the continuance of the contract, to purchase the organ at $165, all previous payments for rent to be deducted from that price. This privilege, however, was in no way to interfere with the right of said Sumner & Co. to control the organ, the property therein remaining in said company. The evidence for plaintiff also showed that Bowen was a bona fide purchaser of defendant's note to Ray and did not collect it as plaintiff's agent; and that plaintiff demanded the organ of defendant, who refused to deliver it to him.

The evidence for defendant showed, that during the years 1871, 1872 and 1873, Ray was the sole agent of plaintiff in Knox county to sell organs and sewing machines, that defendant bought the organ as alleged in the answer, on the 6th day of July, 1871, and executed his note to Ray for $165, the price agreed upon, which he afterward paid to Benjamin Bowen, who was collecting agent for plaintiffs; that he did not know that plaintiff had any claim on the organ that he bought it of Ray on his representation, “that he was the owner, and not of him as agent.” L. F. Cottey testified that he was present when defendant bought the organ; that Ray claimed to have bought it of plaintiff; that defendant purchased of Ray, not as agent of plaintiff but believing him to be the owner.

For plaintiff the court gave the following instructions: 1. If the court sitting as a jury shall believe from the evidence that W. C. Ray on the 17th day of May, 1871, hired of plaintiff the organ in question to be used only by W. C. Ray or his family at his residence in Edina, and agreed to pay the plaintiff $10 per month for the rent of the same, then in that case Ray was not the owner thereof and could not convey any title thereto to defendant.

2. Although the court sitting as a jury may believe from the evidence that the contract read in evidence was a conditional sale of the organ in question to the said Ray, yet if the court should further believe from the evidence that the title of said organ by said contract was to remain in the plaintiff until all the purchase money was paid by said Ray in full to the plaintiff, and that said Ray had never paid the purchase money in full, then in that case Ray was not the owner of said organ and had no right to convey the same to the defendant.

The following asked by defendant were refused: 1. If the court sitting as a jury shall believe from the evidence that plaintiff and Ray made and entered into the written instrument introduced in evidence, that plaintiff on or about the date of said instrument delivered the organ in question to Ray and permitted him to have actual and absolute possession thereof from said date until the sale to defendant, that said instrument is the only contract either written or verbal between plaintiff and Ray relating to said organ, that defendant purchased said organ from said Ray in good faith, and at the time of the purchase had no knowledge or information of the said written instrument, and did not know that plaintiff had or claimed to have any lien on, or title to, said organ, then in that event the said written instrument would be a conditional sale. And if the court further believes from the evidence that said Ray represented to the defendant that he was the owner of said organ, and that defendant purchased the same in good faith...