Windle v. Citizens' Nat. Bank

• Citation: 216 S.W. 1023
• Decision Date: 06 December 1919
• Docket Number: No. 2584.,2584.
• Parties: WINDLE v. CITIZENS' NAT. BANK et al.
• Court: Court of Appeal of Missouri (US)

216 S.W. 1023

WINDLE v. CITIZENS' NAT. BANK et al.

No. 2584.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Error to Circuit Court, Barton County; B. G. Thurman, Judge.

Action by N. E. Windle against the Citizens' National Bank and another. From judgment for defendants, plaintiff appeals. Reversed, and cause remanded.

Owen & Davis, of Joplin, for appellant.

J. H. Bailey, of Carthage, and Martin & Martin, of Lamar, for respondents.

FARRINGTON, J.

The plaintiff, appellant, appeals from a judgment rendered in the circuit court of Barton county in an action instituted by him in replevin. The suit is to recover of defendants the possession of one dapple gray horse, one white gray horse, a set of harness, and a farm wagon. The cause was tried by the court sitting as a jury. After an instruction in the nature of a demurrer to the evidence was overruled, the court refused several declarations of law asked by the plaintiff. There were no declarations of law, as shown by the record, given at the instance of defendants.

It appears from the evidence that in May, 1917, the plaintiff was engaged, in buying and selling horses at Joplin, Mo., and that on the 25th of that month one W. L. Hughes, who was a stranger to plaintiff, presented himself and offered to purchase the property herein sued for.

The facts in this case are somewhat similar to the case of Tom Windle et al. against the same defendants, 216 S. W. 1020, submitted at the same time this case was submitted and decided at this term of court.

When W. L. Hughes offered to purchase the team from plaintiff, he represented his name as that of G. H. Bell, a son of John R. Bell, a farmer living in Jasper county. Plaintiff inquired of a man who knew of the Bell family and ascertained that they were good and responsible people. He then sold to the purchaser representing himself to be" G. H. Bell the property here sued for, for the sum of $350, taking therefor a note for the full amount, and secured the same by a chattel mortgage on this and other property.

Prior to the purchase of the property from the plaintiff, Hughes, working under the name of G. H. Bell, borrowed of defendant bank the sum of $565, securing a note by certain personal property, and represented to Mr. Kolterman, cashier of defendant bank and the man who made the loan, that he was living on the farm of J. W. Williams, in Barton county, Mo. In April, 1917, Kolterman, acting for the bank, discovered that he had been defrauded and that it was W. L. Hughes that he had actually transacted business with and not Bell. Hughes in the meantime was in jail at Pittsburg, Kan., for some offense, and on May 30, 1917, Kolterman saw Hughes, who was in jail, and was told by him that he had some property in Jasper county free and clear of incumbrance with which he could secure him. Defendants, before taking any mortgage from Hughes, had their attorney examine the records of Jasper county for chattel mortgages and found none given by W. L. Hughes or G. H. Bell. They then took a chattel mortgage on the property and also purchased from the First National Bank of Pittsburg a note which had been given by Hughes and secured by certain personal property. It is not exactly clear from the record whether the property sued for by plaintiff was covered by the mortgage that defendants bought from the Pittsburg bank, or whether it was in the other property which they took. At any rate, the property which plaintiff sold to W. L. Hughes, representing himself to be G. H. Bell, was taken by defendants to secure their indebtedness, and the defendants were acting in utmost good faith and without any knowledge of the transaction between Bell-Hughes, and the plaintiff, and also after they had found from examining the records that neither Bell nor Hughes had given a chattel mortgage on the property they were taking to secure themselves.

Plaintiff replevined the property from defendants, and after obtaining possession of it sold it at private sale, but did not sell under his mortgage, nor did he exercise any right or rights which he had under the mortgage which he had taken from G. H. Bell when he sold him this property. It appears from the record that about June 2, 1917, plaintiff ascertained that Bell was a fictitious name and that Hughes was the man who bought his property, and on that date plaintiff put his mortgage of record, which, of course, was subsequent to defendants' transaction with Hughes, and on June 7, 1917, he instituted this suit in replevin.

We are of the opinion that appellant is correct in his assignment of error pertaining to the refusal of the court to give a peremptory instruction to find for plaintiff. The facts are undisputed, and summed up amount to this: One W. L. Hughes, representing himself to be G. H. Bell, bought this property from plaintiff, giving his note and mortgage for it. After obtaining possession of it, he transferred it by chattel mortgage to the defendants who were innocent of any lien or fraud that Bell or Hughes had perpetrated. Under these facts and under the law as we find it, the plaintiff was entitled to a judgment.

The rule, as announced in Mecham on Sales, vol. 2, § 887, is that if a seller, through a fraud or misrepresentation, is induced to part with his goods in the belief that he is selling to one man when in fact he is selling to another, there is no sale that has taken place, and he can recover his goods even in the hands of an Innocent third person. "No title passes out of...