Wheless v. Meyerschmid Grocer Company
| Decision Date | 22 June 1909 |
| Parties | JOSEPH WHELESS, Respondent, v. MEYERSCHMID GROCER COMPANY, Garnishee of WILLIAM MORNINGSTAR, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. C. Orrick Bishop Judge.
REVERSED.
Judgment reversed.
Lee W Grant and P. B. Kennedy for appellant.
Appellant contends that the trial court committed error. First.--In excluding evidence tending to show the real contract or agreement between Morningstar and the American Fruit Product Company, that is, subsequent to the written memorandum showing their mode of dealing, indicating and showing absolutely their understanding between themselves. Second.--In giving the instructions asked by the plaintiff to the effect that the memorandum entered into between the parties July 28, 1904, was an absolute sale of the vinegar and passed title to it or its proceeds to Morningstar. Third.--That the evidence introduced, and which was considered by the court, showed conclusively that Morningstar had no title to the vinegar or its proceeds, and under the law and the evidence the verdict and judgment should have been for the defendant. Fourth.--That the court committed error in refusing instructions offered by the defendant. A contract of sale, like any other contract, is a question of the intention of the parties. Ober v. Corson, 62 Mo. 209. Where a writing in question is not sued upon and is not between the parties to the suit, oral evidence concerning it does not violate the rule against the oral contradiction of a writing. Murphy v. Railroad, 15 Mo.App. 594; Cordes v. Straszer, 8 Mo.App. 61. No formal assignment of an account is necessary; any act showing an intent to the party's interest is sufficient. Smith v. Sterett, 24 Mo. 260; Chrisman v. Divinia, 141 Mo. 122; Roeder v. Schryock, 61 Mo.App. 485; Davis v. Creamery Co., 63 Mo.App. 476. Anything that shows an intention on the one side to make a present irrevocable transfer to the fund, and from which an assent to receive, it may be inferred on the other, will operate in equity as an assignment if supported by a sufficient consideration. Kimball v. Donald, 20 Mo. 577; Ford v. Angelbrodt, 37 Mo. 50; Bank v. Bogy, 44 Mo. 13. An assignee of an account, assigned for value previous to a garnishment by virtue of an execution against the assignor, has a superior right to the plaintiff in the execution, although the assignee may not have given notice of the assignment previous to the garnishment. Smith v. Sterett, 24 Mo. 260; Knapp v. Stordley, 45 Mo.App. 264; Hendrickson v. Bank, 81 Mo.App. 332. To constitute a valid assignment of a chose in action no particular words are necessary. Any act or words are sufficient which show due intention of transferring or appropriating the chose in action to the assignee for a valuable consideration. Macklin v. Kinealy, 141 Mo. 113. An order or assignment made prior to the service of a writ of garnishment on the debtor vests in the assignee a right superior to that of the plaintiff in the garnishment, although no notice was given to the debtor of the assignment. Hendrickson v. Bank, 81 Mo.App. 332. The attaching creditor can stand in no better situation than the debtor. Smith v. Sterrith, 24 Mo. 260; 81 Mo.App. 332. It is permissible for the garnishee to interpose the rights of alleged owners if the fund in defense of the garnishment. Findsay v. Brooks, 82 Mo.App. 301. Plaintiff in a garnishment based on an alleged indebtedness only succeeds to the rights of the garnishee's alleged creditor, and whatever would defeat the creditor in a suit by him to recover the alleged debt will be fatal to the recovery in such garnishment. McDermott v. Donegan, 44 Mo. 85.
Joseph Wheless for respondents.
(1) The contract was an executed sale. Williams v. Evans, 39 Mo. 201; Sigerson v. Kahmann, 39 Mo. 206; Manufacturing Co. v. Jones, 64 Mo.App. 218; Harding v. Manard, 55 Mo.App. 369; Toney v. Goodley, 57 Mo.App. 240; Machine Co. v. Criswell, 58 Mo.App. 473; Keiler v. Tutt, 31 Mo. 306; Strauss v. Hirsch, 63 Mo.App. 103; Conrad v. Fisher, 37 Mo.App. 352; Gatzweiler v. Morgner, 51 Mo.App. 49; Voglesang v. Fisher, 128 Mo. 386; Wren v. Kuehler, 68 Mo.App. 683; Collins v. Lumber Co., 128 Mo. 465-6; Bass v. Walsh, 39 Mo. 197; Bicking v. Stevens, 69 Mo.App. 168; Cotton Press Co. v. Stanard, 44 Mo. 83; Lumber Co. v. DeLisle, 107 Mo.App. 615; Cunningham v. Ashbrook, 20 Mo. 554; Thompson v. Massey, 76 Mo.App. 201; Ober v. Carson, 62 Mo. 209; Greer v. Bank, 128 Mo. 572; Dowell v. Taylor, 2 Mo.App. 329; Grocer Co. v. Clements, 69 Mo.App. 448; Hamilton v. Clark, 25 Mo.App. 437; Mining Co. v. Insurance Co., 25 Mo.App. 265; Zwisler v. Storts, 30 Mo.App. 170; State v. Wingfield, 115 Mo. 437; Blow v. Spear, 43 Mo. 497; Chapman v. Kerr, 80 Mo. 158; Van Horn v. Rucker, 33 Mo. 391; Halliday & Co. v. Lesh, 85 Mo.App. 288; Peters v. Featherstun, 61 Mo.App. 469; Reid, Murdock & Co. v. Mercurio, 91 Mo.App. 673; England v. Mortland, 3 Mo.App. 493; Glass v. Brazer Bros., 91 Mo.App. 564; "The Law," Vol. 2, p. 364; Bissel v. Balcom, 39 N.Y. 275; Commonwealth v. Hess, 148 Pa. 98, 33 Am. St. Reps. 810; Chickering v. Bastress, 130 Ill. 206, 17 Am. St. Reps. 309; Phosphate Co. v. Gill, 69 Md. 537, 9 Am. St. Reps. 443; Sutherland v. Brace (C. C. A.), 73 F. 624; Land & Cattle Co. v. Mann, 130 U.S. 69; Hatch v. Oil Co., 100 U.S. 124; Beardsley v. Beardsley, 138 U.S. 262; Blackwood v. Packing Co., 76 Cal. 212, 9 Am. St. Rep. 199; Tufts v. Griffin, 107 N.C. 47, 22 Am. St. Rep. 866; 24 Am. and Eng. Enc. Law, Title, Sales, passim. (2) Appellant contends that the "intention of the parties," which of course is to govern the interpretation of the contract, shows that no "sale" was contemplated. But the language of the contract, no less than the acts and declarations of the parties, conclusively shows an outright sale, under which the title passed to Morningstar. It is true that in every case of purchase the question of sale or no sale is a matter of intention; but such intention must always be determined by the conduct, acts and declarations of the parties; and not by secret intentions existing in the minds of the contracting parties. Machine Co. v. Criswell, 58 Mo.App. 473; Strauss v. Hirsch, 63 Mo.App. 103; Gatzweiler v. Morgner, 51 Mo.App. 49; Wren v. Kuhler, 68 Mo.App. 683; Blackwood v. Packing Co., 76 Cal. 212. (3) It is quite apparent under the contract in evidence that the arrangement for the vendor to bill out the vinegar and collect the proceeds was merely a method of securing payment, of making good the vendor's lien; it was simply a preservation of security. Under all the authorities this does not affect the completed sale and the passing of title. Bissell v. Balcom, 39 N.Y. 275; Conrad v. Fisher, 37 Mo.App. 352; Voglesang v. Fisher, 128 Mo. 386; Williams v. Evans, 39 Mo. 201; Sigerson v. Kahmann, 39 Mo. 206; Mfg. Co. v. Jones, 64 Mo.App. 218; Cotton Press Co. v. Stanard, 44 Mo. 83; Cunningham v. Ashbrook, 20 Mo. 554; Ober v. Carson, 62 Mo. 209; Dowell v. Taylor, 2 Mo.App. 329; Blow v. Spear, 43 Mo. 497; Lumber Co. v. DeLisle, 107 Mo.App. 615; Beardsley v. Beardsley, 138 U.S. 262; Cattle & Land Co. v. Mann, 130 U.S. 69; Hatch v. Standard Oil Co., 100 U.S. 124; Chickering v. Bastress, 130 Ill. 206; Commonwealth v. Hess, 148 Pa. 98. (4) The testimony of Shepard Foster needs only to be read in the light of the issues in this case, to be held entirely inadmissible for any purpose. Besides being quite immaterial under any aspect of the case, it is an ex post facto attempt to explain away and contradict the explicit terms of the written contract. This cannot be permitted for two reasons: (1) because parol evidence is not admissible for this purpose; and (2) the written contract was offered in evidence by defendant, as the basis of its attempt to defeat plaintiff's action, and it is bound by its own document in evidence. Schneider v. Kirkpatrick, 8 Mo.App. 152; Sayre v. Burdick, 47 Minn. 367. But the contract as written was very plain and unambiguous, and even if Shepard Foster were quite honest in testifying that the company "did not sell any vinegar to Morningstar," still the testimony, and all the rest along these lines, was not properly admissible. Halliday & Co. v. Lesh, 85 Mo.App. 288; Peters v. Featherstun, 61 Mo.App. 469; Beardsley v. Beardsley, 138 U.S. 262. (5) Defendant tries to blow hot and cold in this case. It sets up two entirely contradictory defenses: (a) That the written contract is "not a sale," but something else--it fails to tell us what; and, (b) That Morningstar "assigned" the proceeds of the Meyer-Schmid transaction to the Fruit Product Co. This of course admits the property in Morningstar, else he could not "assign" it. Defendant cannot ride both these defenses. England v. Mortland, 3 Mo.App. 493; Reid, Murdock & Co. v. Mercurio, 91 Mo.App. 681.
This is a garnishment proceeding at law. Plaintiff recovered and the garnishee appeals. It appears that plaintiff instituted his suit by attachment against 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...
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