Wheless v. Meyer & Schmid Grocer Co.

• Decision Date: 22 June 1909
• Citation: Wheless v. Meyer & Schmid Grocer Co., 120 S.W. 708, 140 Mo. App. 572 (Mo. App. 1909)
• Court: Missouri Court of Appeals
• Parties: WHELESS v. MEYER & SCHMID GROCER CO.

120 S.W. 708

140 Mo. App. 572

WHELESS v. MEYER & SCHMID GROCER CO.

St. Louis Court of Appeals. Missouri.

June 22, 1909.

Rehearing Denied July 6, 1909.

1. EVIDENCE (§ 441)—MERGER OF PRIOR NEGOTIATIONS.

Negotiations had between parties prior to the execution of a written contract between them are merged in the contract.

2. EVIDENCE (§ 448)—PAROL EVIDENCE—EXPLAINING WRITTEN CONTRACT.

Where there is ambiguity in a written contract, parol evidence is admissible that the court may be endued with the knowledge that the parties had of the situation and the subject-matter and be directed to the obvious purpose intended by them.

3. FRAUDS, STATUTE OF (§ 106)—CONTRACT OF SALE.

A contract of sale of over 2,000 barrels of vinegar in writing and sufficiently definite and certain, is removed from the operation of the statute of frauds.

4. SALES (§ 1)—ELEMENTS.

The essential elements of a "sale" at common law are a mutual agreement, competent parties, money consideration, and transfer of the absolute or general property in the subject of the sale from the seller to the buyer.

5. SALES (§ 201)—NECESSITY FOR PRESENT DELIVERY.

At common law, no present delivery is essential to the passing of title in the sale of a chattel, but the sale may be perfect, title pass, and the property be at the risk of the purchaser, and yet the seller retain possession and have a complete right to retain possession until the price is paid and to compel payment before delivery, the question of present delivery being ordinarily one of intention of the parties.

6. SALES (§ 313)—LIEN OF SELLER—EFFECT OF DELIVERY.

Symbolical delivery is not sufficient to destroy the seller's right to enforce his lien for the purchase price, only the surrender of the actual custody of the goods operating to destroy the security.

7. SALES (§ 296)—SELLER'S LIEN—RIGHT TO STOPPAGE IN TRANSITU.

While the seller's lien continues only so long as he retains actual custody of the goods, his right of stoppage in transitu continues until actual delivery is made to the consignee.

8. ASSIGNMENTS (§ 31)—FORM.

No particular form of words is necessary to the assignment of an account or obligation, but any act showing an intention to transfer an interest for that purpose is sufficient.

9. ASSIGNMENTS (§ 48)—EQUITABLE ASSIGNMENTS —ENFORCEMENT.

Equitable assignments of accounts or obligations are enforced by equity on the ground that the assignee is entitled to have immediate specific performance of the assignment as soon as the proceeds come into existence in the hands of the assignor; but the assignee also has a present title to the proceeds of the assigned obligation, the doctrine being based on the obvious intention of the parties, as equity treats that as done which should have been done.

10. GARNISHMENT (§ 105)—EXTENT OF GARNISHER'S RIGHTS.

A garnisher can acquire no greater rights against the garnishee than existed in favor of his debtor at the time of the garnishment.

11. GARNISHMENT (§ 31)—PROPERTY SUBJECT TO GARNISHMENT—CREDITS OF DEBTOR.

That a credit of a debtor may be subject to garnishment, it must be both legally and equitably due to him.

12. SALES (§ 201)—ASSIGNMENTS (§§ 48, 98) —SUFFICIENCY — EQUITABLE ASSIGNMENT— PROCEEDS OF SALE.

A manufacturer contracted with a wholesale dealer who was insolvent to sell him a consignment of vinegar. The barrels were marked with the dealer's name, and he agreed to accept the goods and dispose of them by a certain time. The seller who retained custody of the goods, was to accept such orders obtained by the dealer from jobbers as it deemed safe to ship, and the goods were to be billed by the seller to the jobber and collected for by it, and it was to credit the dealer with the difference between the cost price to him and the proceeds received from the jobber. Held, that there was a present sale to the dealer and a passing of title to him though there was no actual delivery, but the parties by providing that the seller should ship the goods and collect for them, retaining its selling price to the dealer, effected an equitable assignment to the seller of the proceeds of all sales made by the dealer, so that he had no property right therein subject to attachment or garnishment in the hands of a buyer.

Appeal from St. Louis Circuit Court; C. Orrick Bishop, Judge.

Action by Joseph Wheless against William Morningstar and the Meyer & Schmid Grocer Company, garnishee. Judgment for plaintiff, and the garnishee appeals. Reversed.

Grant, Carroll & Kennedy, for appellant, Joseph Wheless, in pro. per

NORTONI, J.

This is a garnishment proceeding at law. Plaintiff recovered, and the garnishee appeals. It appears that plaintiff instituted his suit by attachment against the defendant, William Morningstar, and summoned the Meyer & Schmid Grocer Company as garnishee of said Morningstar. The attachment was sustained, and judgment given for the plaintiff against the defendant. Morningstar. The Meyer & Schmid Grocer Company, garnishee, defended, however, and denied that it was the debtor of the defendant, Morningstar. The garnishee asserted that while it had purchased a considerable quantity of vinegar from defendant, Morningstar, it owed the American Fruit Product Company, and not Morningstar, the purchase price thereof. Plaintiff joined issue on this matter, and a trial was had before the court sitting as a jury. The court gave judgment for the plaintiff to the effect that the garnishee was the debtor of Morningstar, and not the debtor of the American Fruit Product Company. The facts out of which the controversy arose are as follows:

William Morningstar, defendant in attachment, was conducting a wholesale vinegar business under the trade name of the "Purity Vinegar Works," at Canastota, N. Y. He was not a manufacturer of vinegar, and, it seems, was without means. He proposed to the American Fruit Product Company, a manufacturer of vinegar, that he would purchase the vinegar he sold from it on credit, and sell the same to dealers, who, instead of paying him, Morningstar, should pay the American Fruit Product Company for the goods. The proposition was accepted, and the American Fruit Product Company sold Morningstar 2,000 barrels of vinegar and gave him the privilege of having an additional 1,000 barrels on the same terms. Immediately upon selling the 2,000 barrels of vinegar to Morningstar, the American Fruit Product Company stamped his trade name "Purity Vinegar Works," thereon, and, it seems, thus segregated or designated that number of barrels as the property of Morningstar. The agreement made between Morningstar and the American Fruit Product Company is evidenced by a written contract as follows:

         "Rochester, N. Y., July 28, 1904
                

"We, the American Fruit Product Co. of the first part, have under the above date sold to Wm. Morningstar, of the second part, two thousand (2,000) barrels, with the privilege of three thousand (3,000) barrels of cider vinegar, to contain not less than four and one-half per cent. of acetic acid, at eight cents per gallon, f. o. b. such mills of ours as said Morningstar might deem necessary to instruct shipment from, no charge for cooperage; cooperage must be first class. This vinegar is guaranteed to Morningstar to be pure apple cider vinegar and to comply with the laws of such states as he may deem fit to ship it into.

"Morningstar, of the second part, agrees to accept these goods under the above contract, and furthermore agrees to dispose of this contract between now and Jan. first, 1905. It is also understood that we, the American Fruit Product Co., are to accept such orders from the jobbing trade as we deem safe and reliable to ship, and that the goods are to be billed by us and collected for in the usual manner, crediting Morningstar with the difference between the cost price to him and their proceeds received from the jobber.

"We have also agreed to furnish him with what white distilled vinegar his orders may call for at seven cents per gal. for fifty grain, no charge for cooperage; cooperage to be first class.

"We, the American Fruit Product Co. have also agreed to take charge of such advertising matter as Morningstar deems necessary to furnish the trade in selling these goods.

"Morningstar, of the second part, has agreed to leave in our hands at all times a sufficient amount of money to cover the expenses of these inducements.

"In case Morningstar should require some cider vinegar with less strength than the strength mentioned above, the price is to be in proportion.

"Terms of this contract sixty days net or two per cent. ten days.

"In case we are not able to ship from such mills as Morningstar should request, we agree to stand half the difference in freight between the two mills.

"In case Morningstar orders vinegar in half barrels, the price is to be nine and one-quarter cents per gallon, f. o. b. mills.

            "American Fruit Product Co
                      "By  L. Shepard Foster, Gen. Mgr
                            "William Morningstar."
                

The record discloses that Morningstar negotiated the sale of 400 barrels of vinegar to the garnishee, Meyer & Schmid Grocer Company, at the agreed price of 13 cents per gallon. The order for this vinegar was taken by Morningstar upon billheads under his trade name—that is, Purity Vinegar Works —and transmitted immediately to the American Fruit Product Company, the manufacturer of the vinegar, as contemplated by the contract above set out. The American Fruit Product Company having investigated the credit of the customer, the present garnishee, duly accepted the order for and shipped the 400 barrels of vinegar to the Meyer & Schmid Grocer Company. Upon accepting the order and shipping the vinegar, the American Fruit Product Company charged the same on its books not to Morningstar, but to the Meyer & Schmid Grocer Company, to whom the shipment was made. It appears the purchase price of the vinegar was still unpaid and owing by the garnishee, Meyer &...