The Gilbert Book Company v. Sheridan
| Decision Date | 17 October 1905 |
| Parties | THE GILBERT BOOK COMPANY, Respondent, v. SHERIDAN et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Horatio D. Wood Judge.
This is an action in replevin. The plaintiff, the Gilbert Book Company, a corporation, is engaged in the publishing and selling of law books in the city of St. Louis. On or about April 28, 1903, it made an arrangement with one Wilbur B. Reading, an attorney at law in said city, to prepare and edit for it a book on civil instructions to juries, which work when completed, was to be published and put upon the market by said book company. Reading was to be compensated by certain royalties on the sale of the book. As a part of the arrangement and in aid thereof, the Gilbert Book Company placed in Reading's office, under a writing which denominated the transaction a loan, a full set of the Missouri Supreme Court Reports, consisting of volumes one to one hundred and seventy-three, inclusive, and a full set of the reports of the St. Louis and Kansas City Courts of Appeals, the same consisting at that time of volumes one to ninety-seven, inclusive, together with six volumes of Pattison's Missouri Digest, and certain other books not necessary to mention. It seems that, by the arrangement, the books were said to be loaned to Reading for his use in preparing said work on instructions, and in furtherance thereof. They were placed in his office with the agreement expressed in writing that upon the completion of the work the Supreme and Courts of Appeals Reports and the Digests were to become the property of Reading, to be charged therefor on account of his royalties at the regular price of said books. In the meantime and until the work on instructions was completed, the books were to remain the property of the Gilbert Book Company. A few months after this arrangement and prior to Reading's completion of the work agreed upon, about August 17, 1903, Reading executed a chattel mortgage on said books to John W. Sheridan as nominal mortgagee, but in fact, to secure a debt mentioned therein of $ 165 falling due fifteen days after date thereof and owed by Reading to Phil. W. Sheridan, who was the real party in interest. The chattel mortgage was never acknowledged or filed for record.
Mr Reading had desk room at the time the mortgage was given and thereafter in the office of Phil. W. Sheridan, and was in his employ. Some time in December of that year, Mr. Reading without ceremony, departed the city of St. Louis for parts alleged by his friends to be unknown. The book on civil instructions never materialized. Within a few days after his departure the Gilbert Book Company asserted its claim to the law books mentioned and Mr. Sheridan denied such claim, produced the chattel mortgage and asserted that as the books were in his office, the mortgage being past due and condition broken, he had a superior right as mortgagee in possession and therefore refused to deliver possession or permit the Gilbert Book Company to take possession. Thereupon this proceeding by replevin was instituted before a justice of the peace for the books mentioned in the chattel mortgage. The book company prevailed in the justice's court and Sheridan appealed to the circuit court where the case was tried at the April term, 1904, to the judge of the circuit court without the intervention of a jury. The book company asserted its ownership to the books and that Sheridan knew, prior to and at the time of the mortgage, that the books were not the property of Reading and that the same were the property of plaintiff and that Sheridan had knowledge of the arrangement whereby Reading was in possession thereof, therefore Sheridan was not a mortgagee or creditor of Reading in good faith and that the mortgage was void as to plaintiff. Sheridan maintained the converse of this proposition. The issue of fact was tried to the judge of the circuit court without the intervention of a jury. Evidence pro and con was introduced thereon by the respective parties. The result was the plaintiff prevailed a second time and the defendant perfected their appeal to this court.
The arrangement whereby Reading became in possession of the books is contained in and is evidenced by the following letter of proposal addressed to the book company by Reading and the unconditional acceptance on the same date by the Gilbert Book Company thereon. It is as follows:
It will be observed that the writing above set out, denominated the transaction a loan and that the evident purport of the whole paper is to the effect that the Gilbert Book Company loaned Reading the books mentioned, up to the time he should complete the work on civil instructions, at which time the books were to become the property of Reading and he was to be charged by the Gilbert Book Company with the regular price thereof, which was to be settled by deductions from the royalties coming to Reading under the former part of the contract.
There were no instructions asked or given in the court below nor was there any finding of facts, and it is difficult for us to ascertain upon what theory the case was tried there. It is contended here, however, on the part of appellant, that the transaction between the Gilbert Book Company and Reading was a conditional sale and for that reason is void as to the rights of appellant, who was a subsequent creditor and extended credit on the faith of Reading's ownership of these books. There was evidence introduced in the court below to the effect that the appellant knew the books did not belong to Reading at the time he took the mortgage. This was presented upon the theory that unless appellant was a subsequent creditor of Reading in good faith, without notice of the Gilbert Company's claim, his mortgage would be void. From the meager showing in the record, we cannot determine whether the trial court determined the issue upon this theory or not. It appears to us that the question of good faith or notice could have no weight in this case one way or another unless the transaction between the Gilbert company and Reading was a conditional sale, and we do not understand it to be such. On the other hand, it appears clearly to this court that the transaction was a mere loan of the books, or bailment, by the Gilbert company to Reading and that the parties so understood it is evidenced from the fact that they denominated it a loan in the writing above set out. These questions we will advert to in the opinion.
Judgment affirmed.
Henry B. Davis for appellants.
Arthur E. Kammerer for respondent.
(1) The books, under the contract, were merely loaned to Reading; he was, therefore, simply a bailee, and hence without power to convey title, even to an innocent purchaser for value. Oyler v. Renfro, 86 Mo.App. 321; Moore v. Simms, 47 Mo.App. 182; Hendricks v. Evans, 46 Mo.App. 313. (2) The transaction between Reading and respondent was not a "conditional sale" under the provisions of section 3412, Revised Statutes 1899: (a) There is no condition that the books shall belong to Reading whenever he shall pay a certain sum. (b) There is no condition in regard to the title to the books remaining in the respondent until a certain sum or the value of the books is paid by Reading. (3) Section 3401, Revised Statutes 1899, regarding loans of property, can have no application in this case; there was no possession in Reading "for the space of five years." Miller v. Bascom, 28 Mo. 352. But even if the transaction between respondent and Reading can in any sense be construed as a "conditional sale" under the provisions of section 3412, Revised Statutes 1899, appellant Phillip H. Sheridan can not avail himself of the benefits of the statute, as he has not shown himself to be a "subsequent purchaser in good faith." Kingsland v. Drum, 80 Mo. 646; Oester v. Sitlington, 115 Mo. 247; sec. 3412, R. S. 1899; Lee v. Bowman, 55 Mo. 400; Coover v. Johnson, 86 Mo. 533; Young v. Schofield, 132 Mo. 650; Stephenson v. Kilpatrick, 166 Mo. 262; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261; Holdsworth v. Shannon, 113 Mo. 508; State ex rel. v. O'Neill, 151 Mo. 67; Edwards v. Railway, 82 Mo.App. 96.
NORTONI, J. (after stating the facts).
It is earnestly contended on the part of appellant that the transaction between the Gilbert company and Mr. Reading whereby Reading became possessed of the books in controversy, was a conditional sale and as such, falls within the inhibition of section 3412, Revised Statutes 1899,...
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