William J. Lemp Brewing Co. v. Mantz
| Decision Date | 08 April 1913 |
| Citation | 87 A. 814,120 Md. 176 |
| Parties | WILLIAM J. LEMP BREWING CO. v. MANTZ. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore City Court; Walter I. Dawkins, Judge.
Attachment by George C. Mantz against H. W. Bissing, in which the William J. Lemp Brewing Company filed a claim to the attached property. From a judgment for plaintiff, defendant appeals. Reversed for new trial.
William Reynolds, of Baltimore, for appellant.
Charles Lee Merriken and Frank M. Merriken, both of Baltimore, for appellee.
The appellee in this case sued out of the Baltimore city court an attachment, and caused certain property, consisting of one two-horse wagon, one one-horse wagon, one double set of harness, and two single sets of harness to be attached as the property of H. W. Bissing, a nonresident debtor. The William J. Lemp Brewing Company, the appellant, as claimant of the two wagons, the double set of harness, and the one single set of harness, filed its petition in said court, alleging that said wagons and harness were the property of the appellant that Bissing had been engaged in Baltimore city in the business of bottling and selling beer manufactured and sold to him by the appellant, and that said wagons and harness had been loaned to him by the appellant, to be used by him in the said business; that the wagons were kept by Bissing at the livery stable of the appellee, from whom he was accustomed from time to time, to hire horses for use in said wagons for the purpose of delivering beer; that after Bissing discontinued his business in Baltimore city he left the wagons and harness in the possession of the appellee, upon whom the appellant made a demand for said property; and that the appellee refused to surrender it, and concealed the same so as to prevent the appellant from regaining possession of it. A case was docketed in the name of the appellant as claimant against the appellee, and presumably against Bissing also. The summons against Bissing was returned "non est," but the appellee, having been summoned and notified of the appellant's claim, appeared and filed two pleas to the petition. The first plea avers that the property mentioned in the petition was not the property of the appellant, but was, "at the time of the levying of said attachment," the property of Bissing, and the second plea, "by way of defense on equitable grounds," alleges "that at and during the time the said Bissing incurred the indebtedness to the defendant, upon which indebtedness said attachment was based, the said Bissing was the apparent owner of the wagons and harness in said petition mentioned, and was clothed and possessed of all the indicia of ownership of said property, and that upon the faith and representation of said apparent ownership, the said defendant extended credit to said Bissing to the amount set out in the account filed with said attachment proceedings." The plaintiff, appellant, joined issue on the first plea, and demurred to the second plea. The court below overruled the demurrer, and the case went to trial on issue joined on the first plea, and on the plaintiff's replication traversing the averments of the second plea.
At the trial the plaintiff offered in evidence the deposition of Adolph Wahlstab, to the effect that he resided in St. Louis and had been employed by the appellant for 30 years as its traveling representative and salesman; that he had seen the wagons and harness attached by the defendant at least a hundred times, and that they had been loaned by the appellant, who was a wholesale dealer in and a distributor of domestic and imported beer, for his use in delivering to his customers in Baltimore city the beer sold and shipped to him in kegs by the appellant; that "the arrangement was made by the deponent, who personally went to the office of the Maryland Wagon Works and ordered the first of the two wagons," and that he instructed Bissing to order for the appellant another wagon from the Maryland Wagon Works; that he knew "of his own knowledge" that said wagons and harness were paid for with the money of the appellant, and that Bissing came into possession of them under the following arrangement: "Bissing bought from the Lemp Company its beer in kegs and desired to deliver it in bottles to his customers in Baltimore; deponent agreed to lend to Bissing the wagons and harness, with the understanding that the Lemp Company were to have possession of them at any time they chose, and that the wagons and harness were to be used for no other purpose than the delivery of beer shipped by the William J. Lemp Brewing Company to Bissing"; that the wagons and harness were the property of the appellant; that when he saw them prior to the attachment "they all had the name and trade-mark of the William J. Lemp Brewing Company, and they also bore the same name and trade-mark after the attachment."
The defendant testified that he had been engaged in the livery business in Baltimore city for nearly four years, and that he began to hire horses to Bissing in February, 1910; that Bissing had a two-horse wagon, a one-horse wagon, one double set of harness, and two single sets of harness, and that when they were not in actual use the harness was kept in the defendant's office, and the wagons were kept in the defendant's shed; that Bissing's initials were on the one-horse wagon and on one of the single sets of harness, but that he did not recall what was on the other wagon, or on the other sets of harness; that there was nothing in connection with his dealings with Bissing to indicate that the property belonged to the appellant; that he thought it belonged to Bissing; and that that was the reason he allowed his bill to run up to $180.00. When asked if Bissing made any representations with reference to the ownership of the property, he replied: On cross-examination he stated the appellant's name was not on the one-horse wagon, but that there was a monogram with the name "Lemp" across it on the two-horse wagon. When asked if he was prepared to say that the name of Lemp Brewing Company was not on the wagon, he replied that he did not recollect. Louis R. Wilhelm, a witness for the defendant, testified that he was a harness manufacturer, and that he sold Bissing one set of harness in 1907, with "H. W. B." on the "winkers and saddle." Frederick Utz, another witness for the defendant, stated that he was employed by Bissing in 1910 and 1911 to bottle beer at his place of business on Saratoga street, and that Lemp's name and the name of H. W. Bissing were on the two wagons used by them, and the defendant's witness, Adam J. Roseway, testified that the initials "H. W. B." were on the harness and on the one-horse wagon, and that the words "Lemp's, St. Louis, H. W. Bissing Distributor" were on the two-horse wagon.
At the conclusion of the testimony the plaintiff offered two prayers and the defendant one. By the plaintiff's second prayer, which was rejected, the court was requested to instruct the jury that there was no evidence in the case legally sufficient to enable the jury to find that Bissing had any interest in the property attached at the time of the issuing of the attachment, and that their verdict should be for the plaintiff, and the defendant's prayer, as modified and granted by the court, contained the following instruction: "If the jury shall find from the evidence that H. W. Bissing was in possession of the wagons and harness mentioned in the evidence, in the month of December, 1910, and in January, February, March, and April, 1911, and that the possession of said articles by said Bissing was such as to induce any reasonably cautious and prudent man to believe that said articles were the property of said Bissing at that time, and if the jury shall further find that the defendant Mantz extended credit to said Bissing believing he owned said property, then the verdict of the jury should be for the defendant, notwithstanding the jury may believe from the evidence that the actual ownership of said articles was in the plaintiff." The plaintiff excepted to the rejection of its second prayer and to the granting of the defendant's prayer, and, the judgment being in favor of the defendant, the plaintiff appealed.
The proposition presented by the defendant's prayer is that if the possession of Bissing was such as to induce a reasonably cautious man to believe that the property belonged to him, and the defendant extended credit to him believing that it was his property, then the plaintiff was not entitled to it, notwithstanding the property belonged to the plaintiff. The principle upon which that instruction was based has no application to a case like the one at bar. The general rule, even as to sales and pledges of personal property, is that "no one can transfer to another a better title than he has himself," and that a bona fide purchaser or...
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