187 Mo. App. 523 | Mo. Ct. App. | 1915
Plaintiff sued defendant in a justice court for the conversion of 158 doors valued at $350. A jury was waived in the circuit court to which the cause was appealed and plaintiff, at the close of his evidence was compelled to take an involuntary non-suit with leave.- Afterward his motion to set aside the nonsuit was overruled and he appealed.
The question for decision is- the sufficiency of the evidence introduced by plaintiff to raise an issue for the court to determine as a trier of fact.
Boyer, the plaintiff, and E. N. Woods were young men of the same age who were lifelong friends and sustained intimate and confidential business relations with each other. Woods was doing business in Kansas City as a wholesale lumber dealer under the name of the Woods Lumber Company and had an office in an office building. Boyer was engaged in selling doors on his own account and was allowed to have his office with Woods free of charge. He also kept the books for Woods’ business for which he was paid a salary and he sold lumber for Woods on commission. In February, 1913, Woods bought 750 fir doors from a dealer in Tacoma, Washington, and at the time the order was given he and Boyer agreed that the latter would purchase half of the doors from Woods at the same prices Woods was to pay and would credit a note of $1000
Woods became financially embarrassed and on August 301, 1913, about four months after the arrival of the doors, he sold to defendant, one of his creditors, all that remained in the warehouse. He made out an itemized descriptive list of the 750 doors he had purchased and wrote on the bottom a note addressed to the person in charge of the warehouse, ordering him to “deliver to the order of Leidigh & Havens Lumber Company such of those doors as you have on hand.” The custodian obeyed the order and delivered all the
Plaintiff does not claim to have purchased an undivided interest in 750 doors and his position is not than of a joint owner of all the doors which remained unsold at the time of the alleged conversion, hut of the sole owner of a number (158) of such doors, the remainder1 of which belonged to Woods. The title claimed by plaintiff was derived by his purchase from Woods of a part of a quantity of doors owned by the latter and is fatally defective, so far as the rights of defendant, a subsequent purchaser from Woods, are concerned, under the rule of general acceptance in this State and in other jurisdictions, .that-where personal property is a part of a general mass or lot, and such part is sold, the title does not pass until the part has been separated and set apart for the purchaser. [Longsdorff v. Meyers, 171 Mo. App. 255 and cases cited; Adam Roth Grocer Co. v. Clements, 69 Mo. App. 446; American Metal Co. v. Daugherty, 204 Mo. 71; Kendall v. Bain, 46 Mo. App. 581; Woods v. M’Gee, 7 Ohio l. c. 469; Bailey v. Smith, 41 N. H. 141; England v. Mortland, 3 Mo. App. 490.]
The failure of plaintiff to have the doors he purchased separated from the general mass, or given distinctive marks by which they could be identified as his property, left the title to all the doors vested in Woods, and defendant, as a purchaser in good faith from Woods, acquired the full legal title and right to possession from him. It is immaterial whether or not plaintiff was in possession of all the doors at the time of the alleged conversion. If he was, his possession was that of the agent of Woods, his employer, and not that of an owner of part of the property,.since he had no title to any of it, and title could not pass to him
The court did not err in ruling that plaintiff cannot recover under his own evidence.
The judgment is affirmed.