The State v. Betz

• Decision Date: 10 December 1907
• Citation: 106 S.W. 64,207 Mo. 589
• Parties: THE STATE v. JACOB L. BETZ, Appellant
• Court: Missouri Supreme Court

106 S.W. 64

207 Mo. 589

THE STATE v. JACOB L. BETZ, Appellant

Supreme Court of Missouri, Second Division

December 10, 1907

Appeal from Gentry Circuit Court. -- Hon. Wm. C. Ellison, Judge.

Affirmed.

J. W Peery for appellant.

(1) "The term bailee, when used in statutes declaring what acts of embezzlement shall constitute a public offense, is not to be understood in its large, but in its limited sense as including simply those bailees who are authorized to keep to transfer, or to deliver, and who receive the goods first bona fide and then fraudulently convert. Where it does not appear that any fiduciary duty is imposed on the defendant to restore the specific goods of which the alleged bailment is composed, a bailment under the statute is not constituted, though it is otherwise where a specific thing, whether money, securities or goods, is received in trust and then appropriated. Unlike embezzlement by servants, of goods not yet come into the master's possession, it is of the essence of this form of embezzlement that the offense should be limited to the particular article bailed; and if the agent have liberty to dispose of such article, then he is not a bailee under the statute." 1 Whart. Crim. Law (9 Ed.), sec. 1055; Dotson v. State, 51 Ark. 119; Reg. v. Hassall, 8 Cox Crim. Cas. 491; Webb v. State, 8 Tex. Crim. Rep. 310; Krause v. Commonwealth, 93 Pa. St. 418; 2 Bishop, New Crim. Law, sec. 857. (2) "The term bailment implies that the owner of the property has placed it in the hands of another who is, at some time, to re-deliver it to the owner in its integrity or in an altered form agreed upon; if, however, the person to whom the property is delivered, has the option to pay for it in money, or in some other property, or to restore it, such option is inconsistent with the character of bailment, and the transaction is, in law, a sale, regardless of what the parties to the transaction may have called it, or have thought it to be." O'Neal v. Stone, 79 Mo.App. 284; Potter v. Mill Co., 101 Mo.App. 581; Coleman v. Lipscomb, 18 Mo.App. 443; In re Galt, 120 F. 64; Singer Mfg. Co. v. Ellington, 103 Ill.App. 517; Lyon v. Lenon, 106 Ind. 567; Chickering v. Bastress, 130 Ill. 206; Bradley-Alderson & Co. v. McAfe, 149 F. 254. That the transaction between the jewelry company and the defendant constituted a conditional sale, and not a bailment, is also clearly shown by the following cases: Tufts v. Wynne, 45 Mo.App. 42; Peters v. Featherstun, 61 Mo.App. 466; Bicking v. Stevens, 69 Mo.App. 168; Barnes v. McCrea, 75 Ia. 267; Smith v. Aldrich, 180 Mass. 367; Forrest v. Nelson, 108 Pa. St. 481; Dearborn v. Raynor, 132 Pa. 231; Basser v. Buxton, 86 N.C. 335; Cont. & B. Co. v. Trust Co., 108 F. 1; Morgan Elec. Co. v. Brown, 193 Pa. St. 351; Harper v. Hogue, 10 Pa.Super.Ct. 624; Equitable Co. v. Eisentrager, 68 N.Y. 866; Plow Co. v. Clark, 102 Ia. 31; State v. Barton, 125 N.C. 702. (3) "The class of contracts known as contracts of 'sale or return' exist where the privilege of purchase or return is not dependent upon the character or quality of the property sold, but rests entirely upon the option of the purchaser to retain or return. . . . The recognized distinction between bailment and sale is that, where the identical article is to be returned in the same or in some altered form, the contract is one of bailment, and the title of the property is not changed. On the other hand, where there is no obligation to return the specific article and the receiver is at liberty to return another thing of value, he becomes a debtor to make the return, and the title to the property is changed. In such case the transaction is a sale." 1 Beach, Mod. Law. Cont., sec. 746. "Title to goods sold 'on memorandum,' that is, 'sale or return,' passes to the vendee upon delivery, subject to a defeasance by exercising the option to return the goods. Until the right to return has been exercised the goods are at the vendee's risk, and if they are destroyed in his possession, he is liable for their agreed value." Amidon v. Powell, 14 Mo.App. 577. "The general proposition, that a delivery of an article at a fixed price, to be paid for or returned, constitutes a sale, is not questioned. Where the option is with the party receiving, to pay for or return the goods received, the uniform current of authorities is that such alternative agreement is a sale." Crocker v. Gullifer, 44 Me. 491; Hotchkiss v. Higgins, 52 Conn. 205. (4) The custom prevailing among jewelers, whereby jewelry is sent by wholesale to retailers under a "memorandum" contract, to remain the property of the wholesaler, and to be paid for only after sale by the retailer, or if not sold to be returned, constitutes a conditional sale and not a bailment. Eisenberg v. Nichols, 22 Wash. 70; People v. Gluck (N. Y.), 80 N.E. 1022; Krause v. Com., 93 Pa. St. 418.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

It is insisted that the memorandum offered in evidence, which memorandum accompanied the four diamonds, was not a paper which placed the title in defendant; but was rather a paper that retained the title in the prosecuting witness, C. B. Norton Jewelry Company. It should be remembered that defendant, in his order, asked the prosecuting witness to send him "by express on memo. one or two nice diamonds, one to one and one-fourth carat." Therefore, when the prosecuting witness sent four diamonds to defendant, it will readily be seen that these diamonds were placed with defendant as a bailee. There was no sale of the goods, certainly not of all four of the diamonds, neither was there a conditional sale of all four of the diamonds. Which one of said diamonds did defendant buy, which ones did he intend to return to the Kansas City firm? It cannot be argued that an attaching creditor of defendant could have taken said diamonds in satisfaction of a debt, neither can it be argued in case of the death of defendant, his personal representative could have taken charge of and sold said diamonds. The diamonds were sent to defendant for his examination and selection, they were not considered sold, neither did the title pass until a regular bill of sale had been sent to him. During the interval between the time when he received the four diamonds, and the time that he made the selection and remitted for the ones that he intended to keep and return the ones that he did not want, the title was in the Kansas City firm, and defendant was a bailee of that firm. If he had failed to remit to said firm, that firm could have taken possession of the property, because no title had passed and because there had been no sale of said property. Sec. 1914, R. S. 1899; Schoulder's Bailments and Carriers, secs. 2, 3. "It is a bailment where goods are sold by A to B, the agreement being that they are to remain the property of A until paid for, or to be returned to A if not paid for." Lawson on Bailments, sec. 8; Harrington v. King, 121 Mass. 269; Dunlap v. Gleason, 16 Mich. 158; Kohler v. Hayes, 41 Cal. 455; King v. Bates, 57 N.H. 446; Wheeler v. Heil, 115 Pa. St. 482; Benj. on Sales, p. 356.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

This is an appeal from a conviction of the defendant in the circuit court of Gentry county, for embezzlement as a bailee, under section 1914, Revised Statutes 1899. The indictment contained three counts, the first charging embezzlement under said section, being the one upon which defendant was convicted; and the second also attempting to charge embezzlement under both sections 1912 and 1914; and the third count charging grand larceny. The second count was, upon motion, quashed, and after the trial was entered into, a nolle prosequi was entered as to both the second and third counts, and the cause was submitted to the jury on the first count alone.

The evidence showed that defendant was a retail jewelry merchant in the city of Stanberry, in said county, and had been dealing with and buying jewelry and diamonds from the C. B. Norton Jewelry Company of Kansas City for six or seven years.

On January 4, 1905, defendant wrote to this company the following letter or order:

"J. L. BETZ,

Jeweler and Optician,

Stanberry, Mo. 1-4-05.

"C. B. Norton Jewelry Co.,

Kansas City, Mo.

"Dear Sir:

"Please send me by exp. on Memo one or two nice diamonds, 1 to 1 1/4 Kt. and oblige,

"Yours very truly,

"J. L. Betz."

In response to said order the company sent to defendant by express the four diamonds described in the indictment, together with the following bill:

"C. B. Norton, Pres. and Treas. H. N. Norton, Vice Pres. W. M. Lewis, Sec.

"Established 1873.

"Bills not paid at maturity subject to sight draft particular attention paid to filling orders.

Goods sent by mail only by special request and at risk of party ordering.

"Consigned on memorandum by

"C. B. Norton Jewelry Company, Jobbers of Diamonds, Watches, Jewelry, Clocks, Silverware, Tools, Materials and Optical Goods.

"1013 and 1015 Grand Ave. Bell and Home Tel., 2073 Main.

"Kansas City, Mo. 1-6-'05.

"J. L. Betz,

"The goods described below are sent at your risk for examination and selection, but none are considered sold, nor does the title pass until a regular bill of sale has been sent you. Please make returns within -- days of their receipt.

"1 Dia.

5252 1 1-4 1-64c.

135.00

170.86

1 Dia.

5819 1 1-16 1-64c.

138.00

148.78

1 Dia.

3550 1 1-8c.

125.00

140.63

1 Dia.

3503 1 1-12 1-16c.

140.00

218.75"

Upon cross-examination the president of the company testified as follows:

"Q. Mr. Norton, I believe you stated awhile ago that defendant's Exhibit No. 1 is the bill which you sent to defendant with the shipment of this lot of diamonds? A. Yes sir.

"Q. ...