Tuttle & Pike v. Bracey-Howard Const. Co.

• Decision Date: 01 March 1909
• Citation: 117 S.W. 86,136 Mo.App. 309
• Parties: TUTTLE & PIKE, Respondents, v. BRACEY-HOWARD CONSTRUCTION COMPANY, Defendant; THE A. JOEBLING'S SONS COMPANY, Interpleader, Appellant
• Court: Kansas Court of Appeals

117 S.W. 86

136 Mo.App. 309

TUTTLE & PIKE, Respondents, v. BRACEY-HOWARD CONSTRUCTION COMPANY, Defendant; THE A. JOEBLING'S SONS COMPANY, Interpleader, Appellant

Court of Appeals of Missouri, Kansas City

March 1, 1909

Appeal from Jackson Circuit Court.--Hon. Andrew F. Evans, Special Judge.

AFFIRMED.

Judgment affirmed.

House & Manard for appellant.

(1) The title to the wire in question never passed from the interpleader to defendant. No order for this wire was ever given by any one having authority to purchase it. There is no such order shown in the correspondence. (2) To this point we invite the court's earnest attention. There is not a word before the court which is evidence of authority on the part of Mr. Bracey, and such authority cannot be assumed merely because it appears that he was president of the Bracey-Howard Construction Company. 10 Cyclopaedia of Law and Procedure, p 903; Jones v. Williams, 139 Mo. 1; Ferguson & Wheeler v. Transfer Co., 79 Mo.App. 352; Sparks v Transfer Co., 104 Mo. 531; Madden v. Realty Co., 75 Mo.App. 358; Moore v. Gaus, 113 Mo. 98; Degnan v. Thoroughman, 88 Mo.App. 62; Rosenbaum v. Gilliam, 101 Mo.App. 126. (3) The negotiations carried on by the B-R Electric Company with the interpleader were never crystallized into any definite agreement between interpleader and defendant, so that it might be said that the minds of the parties had met. (4) Even if a contract was entered into, the fact that the sale was rescinded before the attachment of defendant defeats plaintiffs' claim. Schermerhorn Bros. Co. v. Herald, 81 Mo.App. 461; Best v. Threshing Machine Co., 84 Mo.App. 339; Fine v. Hornsby, 2 Mo.App. 61; Kloes v. Wurmser, 34 Mo.App. 453.

Sebree Conrad & Wendorff and Thad B. Landon for respondents.

(1) There was such a transfer of the possession and right of property in the wire attached as to vest in the defendant title to the property attached in defendant, and render it subject to attachment. Bank v. Smith, 107 Mo.App. 178; Bloom's Sons Co. v. Haas, 130 Mo.App. 122; Scharff v. Meyer, 133 Mo. 428; R. S. 1899, sec. 3412; Johnson-Brinkman Co. v. Bank, 116 Mo. 558; Parlin, Etc., v. Hurd, 78 Mo.App. 279; Collins v. Wilhoit, 108 Mo. 451; Degnan v. Thoroughman, 88 Mo.App. 62; Rosenbaum v. Gilliam, 101 Mo.App. 126; Ferguson v. Transfer Co., 79 Mo.App. 352, and cases cited; Sparks v. Trans. Co., 104 Mo. 531. (2) The sale was not rescinded before the attachment was levied. R. S. 1899, sec. 3410; Nicholson v. Merstetter, 68 Mo.App. 441, and cases cited; Chetwood v. Zinc Co., 93 Mo.App. 225; Dyer v. Balsley, 40 Mo.App. 559; Commission Co. v. Hunter, 91 Mo.App. 418, and cases cited; Dry Goods Co. v. Buchanan, 79 Mo.App. 528; Trust Co. v. Brown, 177 Mo. 412; Beebe v. Hatfield, 67 Mo.App. 609; Stein-Block v. Hill, 100 Mo.App. 38; Bedault v. Wales, 20 Mo. 546; Strauss v. Hirsch, 63 Mo.App. 95; Publishing Co. v. Hull, 81 Mo.App. 277; Nichols v. Stevens, 123 Mo. 96; Murray v. Transit Co., 176 Mo. 183.

OPINION

BROADDUS, P. J.

Interplea. The plaintiffs instituted suit against defendant and caused writ of attachment to be issued, under which was seized as property of defendant six spools of copper wire which was found in a warehouse situated in Kansas City. The appellant filed its interplea in the cause claiming ownership of the property attached, and afterwards executed its bond to the sheriff in the sum of $ 3,024, and obtained possession of the wife. By agreement the cause was tried before the Hon. Andrew F. Evans as special judge. The judgment was in favor of the plaintiff and the interpleader appealed.

The facts are as follows: During the year 1903 defendant was engaged in the construction of what was known as the Kansas City & Olathe Electric Railway. On September 4th the B-R Electric & Telephone Mfg. Company, in behalf of defendant, wrote to interpleader at Chicago, where it had an office for the transaction of business, asking for quotation of prices for material. On September 8th interpleader replied, quoting prices. On September 9th the B-R Company telegraphed that the prices were satisfactory if interpleader would take "Acceptance of Bracey-Howard Construction Company, Chicago, ninety days from date." On September 10th interpleader replied that they would accept the terms on the condition that the B-R Company would endorse the acceptance of the defendant. The B-R Company refused to agree to the arrangement and stated that it was not to be held liable for the wire. The interpleader then required that defendant furnish a financial statement of its condition. This statement was furnished on the 14th of October, 1903. Previously, the interpleader, on September 17, 1903, wrote the B-R Company that it was willing to furnish the material on defendant's credit, taking notes and waiving the endorsement of the B-R Company, and asking for an order direct from the defendant, which was furnished on September 24th by B-R Company. On September 26th the interpleader by letter to defendant acknowledged receipt of the order for the wire which was to be delivered f. o. b. Trenton, New Jersey, and in settlement thereof agreed to accept defendant's ninety days' acceptance to bear six per cent after thirty days. This order was sent from the Chicago office to interpleader's office at Trenton to be filled. After this, there was much correspondence as to the routing of the material and some changes were made in the kind and grade of the material to be furnished. On October 27th interpleader shipped f. o. b. Trenton $ 11,984.50 worth of wire consigned to defendant at Kansas City. On the 28th another shipment of the value of $ 4,991.51 was made consigned as the first shipment. On November 19th interpleader sent to defendant at Chicago a monthly statement of account including the two shipments. The wire arrived in Kansas City sometime about the 19th day of November and was stored in a warehouse under the charge and control of defendant. It remained in the warehouse until December 23rd when the six spools mentioned were seized by the sheriff under the writ of attachment issued in this case.

After the shipment of the wire, a difficulty arose between interpleader and defendant with reference to the execution by defendant of the notes to be given for the material, and the further shipment of wire was withheld by interpleader until the matter could be adjusted. The interpleader and defendant by correspondence entered into an agreement by which the wire was to remain in defendant's warehouse subject to its order, but before interpleader could take possession it was attached as stated. The following stipulation was entered into by the parties at the trial, viz.: "That the wire attached in this case and claimed in the interplea was a part of the wire referred to in the correspondence in evidence and was shipped to Kansas City by the interpleader consigned to defendant. That upon its arrival at Kansas City it was taken possession of by James E. Tryon, as engineer of said defendant, Bracey-Howard Construction Company, and was by him stored in a warehouse, where it was attached, which warehouse had been rented by the defendant through its agent, James E. Tryon, and which warehouse was used by the defendant for storing said wire, as well as the tools, implements and other property of defendant." The defendant in the transaction acted through its president, a Mr. Bracey.

The position of interpleader in the trial court and in this is as follows: That the title to the wire attached never vested in the defendant; and that, if there was a sale of the wire, it was rescinded and the title thereby revested...