Triplett v. Morris

• Decision Date: 22 January 1898
• Citation: 44 S.W. 684
• Parties: TRIPLETT v. MORRIS et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

44 S.W. 684

TRIPLETT v. MORRIS et al.¹

Court of Civil Appeals of Texas.

January 22, 1898.

Error from district court, Hood county; J. S. Straughan, Judge.

Action by John S. Triplett against B. W. Morris, as sheriff of Hood county, and others. From a judgment for defendants, plaintiff brings error. Reversed.

J. J. Hiner and W. S. Essex, for plaintiff in error. N. L. Cooper and B. M. Estes, for defendants in error.

STEPHENS, J.

Suit was brought February 27, 1891, by John S. Triplett, the Hamilton-Brown Shoe Company, the Gauss-Shelton Hat Company, and Rindskoff-Stern-Lauer & Co., against the sheriff of Hood county and the sureties on his official bond, for conversion under an attachment writ in favor of the First National Bank of Granbury against A. G. Dabney, of "certain clothing, dry goods, shoes, etc.," of the alleged value of $2,500. A jury trial was had upon a second amended petition, filed September 23, 1895, in the name of John S. Triplett alone, but which stated the facts substantially as in the original; and from a verdict and judgment denying him any recovery this writ of error is prosecuted.

His right to the goods depended upon the validity of a sale alleged to have been made by A. G. Dabney to him, as agent for the three companies above named, on the 15th day of December, 1890. Dabney was then doing a retail business at Thorp Springs, Tex.; having a stock of dry goods and groceries which invoiced about $11,000. The groceries, or a part thereof, had just been attached by one firm of his creditors (Egloff Bros.) when the sale in question was made. Being indebted to the three companies first above named in the several sums specified in the bill of sale copied below, Dabney proposed to Triplett, as agent for said companies, to pay off their debts in goods at the invoice price, plus 20 per cent., which proposition Triplett accepted, and proceeded at once to select the goods, which, to quote from his testimony, was done as follows: "I picked out the goods, and they moved them and piled them up for me as I selected them. I had the inventory of the clothing bill, and felt it was necessary to act hastily; and, knowing the value of the clothing, I took the clothing as a whole. The clothing had been sold in September. I knew the clothing would amount to $1,500, and after I got them I began to pick out from the stock such goods as could be readily converted into money; and, when I thought I had enough, I stopped taking the goods, and was impressed that they would pay my debts on the terms proposed, — 120 cents on the dollar. I had Mr. Milliken and the other parties to bring the counters up side by side, and I selected the clothing as it was piled up. There were some other clothes that I did not want. They were shopworn. I had them taken away, and had other goods put there; and, when I got through picking out the goods I wanted, I noticed some original shoe boxes in the south end of the house, and I had them brought out and piled under and around the counters, so as to keep them separate from the main stock; and when I got through I found some counter covers, and I covered the goods and put tags on them, and wrote on the tags, `These goods belong to Stern-Lauer-Shohl & Co., these to Gauss-Shelton Hat Co., and these to Hamilton-Brown Shoe Co.,' to identify the goods I had bought. We did not have time to invoice the goods. I had the goods selected when Dabney came, and was ready to receive them. After he came, the bill of sale was written out, signed, and handed to me." The bill of sale reads: "For and in consideration of the sum of $1,480.95 owing by me to Rindskoff-Lauer & Co., of Cincinnati, Ohio, and the sum of $858.70 due Hamilton-Brown Shoe Co., of St. Louis, Mo., and the sum of $688.90 due the Gauss-Shelton Hat Co., of St. Louis, Mo., I hereby, and by these presents, sell and deliver to John S. Triplett, as agent for the above-mentioned firms, all the clothing, dry goods, and shoes that have been set aside by me for the payment of said above-mentioned debts, in consideration of which they release me from all liability on the amounts above named owing to said firms, and accept said goods in settlement thereof. The said John S. Triplett is to invoice said goods, and to pay me 20 per cent. on the original invoice price of said goods; and if there be any goods remaining, over and above enough to satisfy the above-mentioned debts at the said price, the same is to be turned over to me. Witness my hand this the 15th day of December, 1890. A. G. Dabney." The excess provided for in the last sentence of this bill of sale amounted to about $100. Immediately after the execution of the bill of sale, and before the goods could be invoiced, the whole stock was seized by the sheriff, first under the attachment of Rice, Stix & Co., covering something over $3,000 worth of the dry goods, but including only a small portion of the goods claimed by Triplett, and then under that of the First National Bank of Granbury, which covered the entire stock, subject to prior levies.

The main defense interposed was that the sale to Triplett was incomplete, and hence did not vest any title in him. This issue, so far, at least, as plaintiff in error is concerned seems to have been correctly and fairly submitted to the jury, unless, possibly, the charge be subject to the objection of repetition. It only required him to show that the goods for the conversion of which he sued had been so separated from the rest of the stock as that they could be identified previous to the levy, and that nothing remained to be done by the seller to complete the sale. The issue was thus submitted in conformity to the rule laid down and discussed with so much ability by Justice Coke in the leading case in this state on that subject, of Cleveland v. Williams, 29 Tex. 204. The defendants in error, however, contend that the sale was but executory, in that Triplett was to invoice the goods delivered to him, and return to Dabney the small excess as provided in the bill of sale. It is clear that nothing further remained to be done by Dabney, the seller; and great doubt has been expressed "whether the general rule could be made to extend to cases where something remains to be done to the goods, not by the seller, but by the buyer." Benj. Sales (Bennett) p. 250, § 332. True, this distinguished author lays down the rule, which has several times been expressly approved by the supreme court of the United States, that "where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer." Benj. Sales, p. 244, § 320. But this rule finds its appropriate application in cases where the title of the buyer is impliedly made to depend upon the...