Vogelsang's v. Fisher

• Decision Date: 21 May 1895
• Parties: Vogelsang's Administrator, Plaintiff in Error, v. Fisher et al
• Court: Missouri Supreme Court

31 S.W. 13

128 Mo. 386

Vogelsang's Administrator, Plaintiff in Error, v. Fisher et al

Supreme Court of Missouri

May 21, 1895

Appeal from the St. Louis City Circuit Court. -- Hon. G. W. Lubke Judge.

Affirmed.

David Goldsmith for plaintiff in error.

(1) The court erred in permitting the defendants to ask directly of their witnesses, in whose possession the warehouse was, and also in whose possession the whiskey in controversy was. Hart v. Railroad, 94 Mo. 255; Brown v. Plank Road Co., 89 Mo. 152; Gavick v. Railroad, 49 Mo. 276. (2) The instruction given by the court of its own motion was erroneous. R. S. U.S. 1878, secs. 3271 to 3274 3294, 3295; supplement thereto, pages 1, 12, 286, sec. 6, and 288, sec. 17; Newcomb, etc., Co. v. Cabell, 10 Bush 460; Keil v. Harris, 6 A. 750; In re Hughes, 12 Irish Ch. 466. (3) Instruction number 1, in regard to the delivery of possession to C. Conrad & Company, should have been given. Gill v. Pavenstedt, 7 Am. Law. Reg., N. S., 672; United States v. McCullough, 22 Int. Rev. Rec., 204; Ex parte Luce, 2 Lowell's Dec. 245; Parker v. Byrnes, 1 Lowell's Dec. 539. (4) Instructions numbers 2 and 6, in regard to the delivery of possession to C. Conrad & Company should have been given. Hurry v. Mangles, 1 Camp. 452; Frazer v. Hilliard, 2 Strob. (Law) 309; Chapman v. Searle, 3 Pick. 38; Arnold v. Delano, 4 Cush. 33; Douglas v. Shumway, 13 Gray, 458; White v. Welsh, 38 Pa. St. 396. Moreover, such a delivery satisfies the statute of frauds. Bass v. Walsh, 39 Mo. 199. (5) And delivery under that statute is identical with that which will terminate the vendor's lien. Troop v. Hart, 7 Duval (Canada), 541; Kirby v. Johnson, 22 Mo. 357; Blackburn on Sales [2 Ed.], p. 37; Cusack v. Robinson, 1 Best & Sm. 307; Stafford v. McDonough, 120 Mass. 290; Rodgers v. Jones, 129 Mass. 420; Hewes v. Jordan, 39 Md. 481; Browne on Statute of Frauds [4 Ed.], sec. 317. (6) Instructions numbers 4 and 5, as to the effect of the issue of the warehouse receipts to the plaintiff, should have been given. First. The assent to the issue of warehouse receipts by C. Conrad & Company being unlimited, extended, as a matter of law, to the issue of receipts as security for antecedent indebtedness; and, aside therefrom, the evidence amply established the right of C. Conrad & Company, to apply the receipts to that use. Lord v. Bank, 20 Pa. St. 384; Pitts v. Foglesong, 37 Ohio St. 676; Bank v. Penfield, 69 N.Y. 52. Second. Nor did the insolvency of C. Conrad & Company affect the right of that firm to issue warehouse receipts. Hart v. Trust Co., 118 Pa. St. 570; Conrad v. Fisher, 37 Mo.App. 406. (7) The issue of the warehouse receipts being thus within the scope of the assent, the Silver Creek Distilling Company became, by virtue thereof, the bailee of the plaintiff, and the establishment of that relation between vendor and subvendee unquestionably debars the lien of the vendor. Benjamin on Sales [6 Am. Ed.], sec. 817; Pierson v. Dawson, Ell., Bl. & Ell. 448; Troop v. Hart, 7 Can. S.Ct. (Duval), 512; Knights v. Wiffen, L. R. 5 Q. B. 660; Lucas v. Dorien, 7 Taunt. 278; Hawes v. Watson, 2 B. & C. 539. In fact, even as to the right of stoppage in transitu, a shipment by the vendor to a subvendee terminates it. Eaton v. Cook, 32 Vt. 58; Treadway v. Aydlett, 9 Heisk. (Tenn.) 388; Jones on Liens, sec. 961; Railroad v. Freed, 38 Ark. 614. (8) The issue of the warehouse receipts also, under our law, constituted a symbolical delivery of the property represented by them. Gibson v. Stevens, 8 How. 384; Newcomb, etc., Co. v. Cabell, 10 Bush, 460; Keil v. Harris, 1 Penn. Co. Ct. 171; Durr v. Hervey, 44 Ark. 301; Jones on Pledges, sec. 280.

Silas B. Jones for defendants in error.

(1) When a purchaser of goods on credit becomes insolvent before the seller has utterly parted with the possession thereof, the lien of the seller for the price, which was waived by the original credit, at once revives, and he may hold the goods until he is paid for them. The fact that the purchaser has given a note in payment, which has not matured, does not destroy the right of lien on insolvency, if the note is held by the seller. Company v. Stanard, 44 Mo. 71; Compang v. Plant, 45 Mo. 517; Arnold v. Delano, 3 Cush. 33; White v. Welsh, 38 Pa. St. 396; 2 Benjamin on Sales, sec. 1130, et seq., 1136. (2) The right of lien in such case arises from the fact of insolvency of the purchaser, and not from the manner in which it discovers itself, or whether it is discovered. Schwabacher v. Kane, 13 Mo.App. 126; Benedict v. Schoettle, 12 Ohio St. 515; Loeb v. Peters, 63 Ala. 243; Muller v. Pondir, 55 N.Y. 325; Arnold v. Delano, 3 Cush. 33. (3) Such right of lien arises from the implied condition on which the credit is given, that the purchaser will maintain his solvency. Arnold v. Delano, 3 Cush. 33; Muller v. Pondir, 55 N.Y. 336, et seq.; Bloxam v. Sanders, 4 B. & C. 941; Benedict v. Schoettle, 12 Ohio St. 520; Heinz v. Transfer Co., 82 Mo. 233; 2 Kent's Com. [13 Ed.] 493. (4) The result to be deduced from all the modern cases on the subject is, that if the insolvency of the purchaser occur while the seller is in the actual possession of the goods, the seller may assert his lien, though the purchaser may have the title to, and be in constructive possession of, the goods. Company v. Stanard, 44 Mo. 71; Company v. Plant, 45 Mo. 517; Kirby v. Johnson, 22 Mo. 354; Harvey v. Association, 39 Mo. 211; Sigerson v. Kahmann, 39 Mo. 206; Mohr v. Railroad, 106 Mass. 67; Dickson v. Yates, 5 B. & Ad. 313; Miles v. Gorton, 2 C. & M. 504; Townly v. Crump, 4 Ad. & E. 58; Grice v. Richardson, 3 App. Cas. 319; Arnold v. Delano, 3 Cush. 33; White v. Welsh, 38 Pa. St. 396; Wanamaker v. Yerkes, 70 Pa. St. 443. (5) A symbolic or other constructive delivery of a chattel may divest the seller of his possession and hence destroy his lien, if the chattel be a cumbersome article not capable of manual possession or delivery; but no such delivery will destroy the vendor's lien, if the chattel remain in the actual possession, charge and keeping of the vendor. Harvey v. Association, 39 Mo. 211; Thompson v. Railroad, 28 Md. 396; Shindler v. Houston, 1 N.Y. 261. (6) Again, if the seller under the contract of sale is to do any act to the goods to fully perform the contract on his part, which has not been done when the buyer's insolvency occurs, the seller may assert his lien. Mohr v. Railroad, 106 Mass. 67; Keeler v. Goodwin, 111 Mass. 490; Gill v. Pavenstedt, 7 Am. L. R. (N. S.) 672; Company v. Stanard, 44 Mo. 71. (7) The seller's lien, and the right of stoppage in transitu, which is a mere extension of the lien, had its origin in courts of equity, and is highly favored. "It is based on that very obvious principle of justice and equity, that one man's goods should not be applied to the payment of another man's debts." Heinz v. Transfer Co., 82 Mo. 233; D'Aquila v. Lambert, 2 Eden, 77; Hamberger v. Rodman, 9 Daly, 93; Mueller v. Pondir, 55 N.Y. 325. (8) A subvendee or pledgee of the first vendee acquires no rights superior to those of the first vendee, unless the vendor has by his conduct estopped himself to assert his lien against such subvendee or pledgee. Company v. Plant, 45 Mo. 517; 2 Benjamin on Sales, sec. 1140. (9) The federal statute (R. S. U.S. sec. 3274) provides that "every distillery warehouse shall be in the joint custody of the storekeeper and the proprietor thereof." No reason or authority is shown by appellant's counsel, why the joint possession of the storekeeper for the protection of the United States, should in any way curtail the effect of the possession of the distiller for his own protection. As far as we are advised the authorities give no such force to the control which the government exercises for its own protection. Gill v. Pavenstedt, 7 Am. L. R. (N. S.) 672; Stanard's case, 44 Mo. 84; Ober v. Carson, 62 Mo. 200. (10) A warehouse receipt as between the parties is open to explanation and contradiction like any other receipt. Bigelow on Estoppel [3 Ed.], p. 471 et seq.; 2 Wharton on Ev., sec. 1064; 1 Greenleaf on Ev., sec. 305; Carroll v. Railroad, 14 Mo.App. 490. (11) The right of stoppage in transitu is a mere extension of the vendor's lien. An attaching creditor does not become a purchaser for value so as to cut off the right of stoppage in transitu. Schwabacher v. Kane, 13 Mo.App. 126. (12) The right of stoppage in transitu may be defeated by a transfer of the bill of lading to a purchaser for value; but one who takes the bill of lading merely as security for an antecedent debt is not a purchaser for value in such a sense. Loeb v. Peters, 63 Ala. 243; Lesasier v. Southwestern, 2 Wood C. C., 35; see, also, Halbrook v. Vose, 6 Bosw. 76, 107; Lee v. Kimball, 45 Me. 172. (13) The taker of commercial paper merely as collateral security for an antecedent debt is not a purchaser for value, and has no greater rights than the person from whom he obtained it. Goodman v. Simonds, 19 Mo. 106; Logan v. Smith, 62 Mo. 455; Davis v. Carson, 69 Mo. 609; Brainard v. Revis, 2 Mo.App. 490; Terry v. Hickman, 1 Mo.App. 119; Hodges v. Black, 8 Mo.App. 389; s. c., 76 Mo. 537; Lee v. Smead, 1 Metc. (Ky.) 628; May v. Quinby, 3 Bush. 96.

OPINION

In Banc.

Macfarlane J.

The suit is for damages for the conversion of two hundred and seventy-five barrels whiskey. Plaintiff's right to recover depends upon the sufficiency of certain warehouse receipts issued to her by C. Conrad & Company, purporting to transfer to her the whiskey, then in a distillery warehouse of the United States under the requirements of the internal revenue laws. Defendants claim under a vendor's lien retained for the purchase price of the whiskey sold by Stagg, Hume & Company to the said Conrad & Company.

On a trial in the circuit court a judgment was...