119 Kan. 336 | Kan. | 1925
The opinion of the court was delivered by
This is an action in replevin for a gasoline motor truck. Judgment was rendered for the defendants, and the plaintiff appeals.
The case was tried by the court on an agreed statement of facts, in substance as follows: The truck was shipped over the plaintiff railroad by the Attebury Motor Car Company under a bill of lading, which with sight draft attached was sent to the First National Bank of Kansas City, Mo., for collection. The bill of lading designated the Attebury Motor Car Company, at Kansas City, Mo., as consignee, and was marked “Notify Denmo-Kansas Sales Company.” The draft was not paid, and the bill of lading was not received by
The plaintiff urges that it had a special ownership in or title to the truck as against any other person, “which would have sustained an action for damage to the property or an action to recover possession wrongfully withheld from it”; but the defendants argue “that a bona fide purchaser in such a case for value and without notice will be protected is established by the authorities generally.”
In 10 C. J. 269 the writer says:
“A carrier who has negligently delivered, goods to a vendee of the shipper without collecting the purchase money as should have been done, or without requiring the production of the bill of lading, cannot recover them from a bona fide purchaser of the vendee.”
“A sold to B a buggy, and delivered it to a common carrier to be delivered to B upon the payment of the price; the carrier negligently permitted B to obtain possession without paying the price; and while in possession, B sold to C, who- was a purchaser for value without notice: Held:
“1. That as soon as the vehicle was delivered to the carrier the right of property passed to the vendee, but the right of possession remained in the vendor until the price was paid.
“2. That by the negligent conduct of the vendor and his agent, the carrier, the right of property and the right to possession became united in C, and neither the vendor nor the carrier could maintain an action to recover the property.
“3, But if the original contract had been one in which no title passed, a purchaser for yalue and without notice would not have been protected.” (Syl.)
In Luzadder v. Hale, 118 Kan. 85, 233 Pac. 1046, this court said:
“A purchased an automobile in his own name with money furnished by B. B permitted A to have possession of the automobile, with all indicia of title indicating absolute ownership in A. Held, B was estopped from denying A’s authority to mortgage the automobile to C, who acted in good faith upon A’s possession and indicia of title.” (Syl.)
The plaintiff, through its negligence, wrongfully delivered the car to Frith. Frith then mortgaged it to the Denmo-Kansas Sales Company, which afterward transferred the mortgage and the notes it secured to an innocent purchaser. Thereafter Frith and the Sales Company sold the truck to a person who did not have any notice or knowledge of the manner in which Frith obtained possession of the truck. The plaintiff desires to be relieved from the consequences of its negligence and place those consequences on the innocent holder of the notes and mortgage and the bona fide purchaser of the truck. As between the plaintiff and the holder of the mortgage and as between the plaintiff and the purchaser of the -truck, the plaintiff should suffer the loss, because by the negligence of the plaintiff it became possible for the holder of the mortgage and for the purchaser of the truck to assume those relations innocently. This brings the case within the principle that where one of two innocent parties must suffer, he whose conduct made it possible for the injury to occur should sustain the loss occasioned. (10 C. J. 269; Savings Bank v. A. T. & Santa Fe Rld. Co., 20 Kan. 519; Kohn v. Watkins, 26 Kan. 691, 701; Sawyer v. Symns, 39 Kan. 148, 17 Pac. 799; Rose v. Douglass Township, 52 Kan. 451, 453, 34 Pac. 1046.)
The judgment is affirmed.