116 Mo. 558 | Mo. | 1893
This is an action to recover the proceeds or value of six car loads of wheat. Prior to August 30, 1890, the Imboden Commission Company, a corporation engaged in the grain business, contracted to buy of the plaintiff in this action, also a corporation engaged in the grain business, six car loads of wheat. On that day, Saturday, August 30, 1890, the plaintiff delivered to the Imboden Commission Company, the six cars of wheat in controversy, by delivering to them the original bill of lading, the inspector’s certificate, elevator receipts, etc., and receiving in return the check of the Imboden Commission Company on defendant bank for $3,719.37, being the price agreed upon. The Imboden Commission Company went to the Missouri Pacific Railway Co., and surrendered the JohnsonBrinkman bill of lading, receiving in exchange therefor a bill in their own names, consigning the grain to their order in St. Louis, and marked: “Notify C. H. Albers & Co.,” to whom they had sold it. They drew a draft on Albers & Co. for $3,743.19, which amount represented the price of the grain agreed on with John son-Brinkman Commission Company, and certain
On the same day, August 30, the bank sent the draft and bill of lading to its correspondent in St. Louis, to whom, on Monday, September 1, during banking hours, the amount thereof was paid by Albers & Co. The plaintiff deposited the check which Imboden Commission Company had given it for the wheat to their account at the Midland National Bank on the afternoon of Saturday, and on Monday, September 1, it passed through the clearing house and was presented to defendant bank for payment, and payment was refused. On the afternoon of Monday, September 1, apparently after banking hours, Imboden, president of the Imboden Commission Company, which had drawn the check, and Mr. A. D. Johnson, president of the plaintiff corporation, called on Mr. Thayer, cashier of the Centralbank, and demanded the wheat back, or the money for the wheat. Thayer claiming on the part of the bank, that he had no funds applicable to such payment, refused the request; saying, however, that if it should turn out Imboden had anything he would turn it over.
Afterwards and on the same day, Imboden turned over to Johnson all the property, apparently, that the Imboden Commission Company owned, consisting of some office furniture, etc., and Mr. Johnson, for the plaintiff, put up a notice on the door of the office of the Imboden Commission Company that plaintiff was in possession. Whether a bill of sale was executed or
On the same day, September 1st, Johnson-Brink-man Company sued out a writ' of attachment against the Imboden Commission Company, and on the writ garnished the Missouri Pacific Railway Company, but the wheat in controversy had then been shipped from Kansas City and was not seized under the writ of attachment. The attachment suit was pending in the circuit court until September 24th, when it was dismissed and the present action instituted.
The terms of the sale from Johnson-Brinkman Company to the Imboden Commission Company were cash on delivery, and it was contended, on this part of the case by the plaintiff, that a check which was subsequently dishonored was in no sense payment; and that the terms of the sale not having been carried out, the property in the wheat, or at least the right to possession of the wheat, had never passed either to the Imboden Commission Company or anyone else. The bank, on the other hand, claimed that in dealing with the wheat they had acted merely as agents of the Imboden Commission Company, exercising no act of dominion over the wheat; that they had forwarded the bill and draft to St. Louis, in the ordinary course of business, as expressly instructed by the Imboden Commission Company to do, and had demanded and received payment of the- draft from the consignee designated, crediting the Imboden Commission Com
As objection is taken by defendant to the petition— leaving out the formal part — it is copied in full and is as follows:
“Plaintiff, for cause of action against defendant, states that plaintiff and defendant are and were at all the times hereinafter mentioned corporations duly created and existing .under and by virtue and authority of the laws of the state of Missouri; that on the thirtieth day of August, 1890, plaintiff was the owner and was entitled to the possession of 4017 20-60 bushels number 2 hard wheat, contained in cars as follows, to-wit: Car number 5021, Missouri Pacific, 629 bushels; car number .7308, Missouri Pacific, 623 20-60 bushels; car number 8225, Missouri Pacific, 588 20-60 bushels; car number 9222, I. M., 700 bushels; car number 119, H. C. A. & Gr., 800 bushels; and car number 12475, Missouri Pacific, 666 40-60 bushels; of a total value of three thousand seven hundred and nineteen and 37-100 dollars ($3,719.37); that defendant on said thirtieth day of August, 1890, willfully and wrongfully, in utter disregard of plaintiff’s rights, took all of
“Wherefore, plaintiff asks judgment against defendant for said sum of $3,719.37 and interest thereon-at six per cent, per annum, and for all costs in this matter incurred and expended.”
The answer of defendant is a general denial. There was a verdict and judgment for plaintiff. A motion for a new trial, and also in arrest were filed by defendant, which being overruled, the case is here by appeal.
The law is well - settled that- an action cannot be brought on one cause of action and a recovery had on another. Clements v. Yeates, 69 Mo. 623; Sandeen v. Railroad, 79 Mo. 278; Finlay v. Bryson, 84 Mo. 664; Jones v. Loomis, 19 Mo. App. 234. Nor can trover and conversion be maintained where the plaintiff has neither the right of property in, nor the right of possession to the chattels alleged to have been converted. Parker v. Rodes, 79 Mo. 88; Myers v. Hale, 17 Mo. App. 204. But where money is received by one to which another is legally entitled, the latter may recover it in an action for money had and received. Under the Missouri code we have but one form of action for the enforcement or
The petition avers that defendant ‘ ‘in disregard of plaintiff’s rights, took all of said wheat and converted the same to its own use, and now has the proceeds thereof in its possession and under its control and plaintiff has demanded from the defendant the value of said wheat; that the proceeds of said wheat now in the possession and under the control of defendant are equal to the value of,” etc. If the wheat belonged to plaintiff at the time it was received by Albers & Company in St. Louis, and the latter afterwards sent this draft to defendant in payment therefor, and if at the time of the receipt thereof defendant knew that the wheat was the property of plaintiff at the time of the sale to Albers & Company, or that the sale of the wheat by plaintiffs to the Imboden Commission Company was a cash sale and that the wheat had not been paid for by Imboden Commission Company, then the proceeds of the wheat was the property of plaintiff, and it may maintain its action against defendant as for money had and received to its use and benefit. Railroad v. McLiney, 32 Mo. App. 166; Cary v. Curtis, 3 How. (U. S.) 236; Kreutz v. Livingston, 15 Cal. 344; Tutt v. Ide, 3 Blatch. 249; Bullard v. Hascall, 25 Mich. 132; 4 "Wait’s Actions and Defenses, 469, and authorities cited.
Nor is it essential that any privity of contract should be shown; if plaintiff’s right to the money is
And so it has been held that where money has been received from the wrongful sale of personal property of another, the latter may waive the wrong and recover the amount received. Tamm v. Kellogg, 49 Mo. 118, and authorities cited. Such seems to be the theory upon which the case was tried by both parties, as is manifest from the instructions, given in the case, especially as the seventh and eighth given on behalf of the defendant, present this question squarely to' the jury. Even if the plaintiff by its instructions placed its right of recovery upon a different ground from that stated in the petition, still the defendant will not be heard to complain where it committed a like error by submitting the converse of the theory hypothecated in' plaintiff’s instructions. Bank v. Armstrong, 92 Mo. 265; Hilz v. Railroad, 101 Mo. 36; Thorpe v. Railroad, 89 Mo. 650; Bettes v. Magoon, 85 Mo. 580; Loomis v. Railroad, 17 Mo. App.340. A party cannot be heard to complain of an error which he invites or adopts. We think the petition sufficient to support the verdict for money had and received, and especially as the case was tried by both parties on that theory.
There was much irrelevant testimony introduced by plaintiff over the objection of defendant, but none of it is of such materiality as to justify a reversal on that ground, as it could not possibly have had any influence on the jury in making their verdict.
The terms of the sale of the six ear loads of wheat by Johnson-Brinkman Commission Company to Imbo■den Commission Company being cash, and for which
As between vendor and purchaser, where the sale of the chattels is a cash sale, the delivery of the thing sold and the payment of the purchase money are concurrent acts, and the former may reclaim his property if the purchase money be not paid according to the terms of the sale, either in the hands of the vendee or of a purchaser with or without notice, of the terms of the sale, and that the purchase money has not been paid, provided the vendor has not waived the cash payment and has been guilty of no laches or such conduct
A cash sale and a sale upon subsequent condition are entirely different. In the first, the payment of the purchase money and delivery of the property are concurrent acts, one and the same transaction, while' the latter is a sale and delivery of the thing sold on condition subsequent, subject to be defeated by failure of the purchaser to comply with the terms of the contract of purchase. The former may be avoided by the vendor upon failure by the vendee to pay the purchase money, while the property is in his hands or in the hands of any other purchaser unless the payment of the purchase price has been waived. While section 5178, Revised Statutes 1889, invalidates conditional sales, as to the creditors of the vendor and subsequent purchasers in good faith when the goods are delivered to the vendee, except where the condition is evidenced by writing executed, acknowledged and recorded as-in the case of chattel mortgages, section 5180, same statute, was manifestly intended to invalidate numerous devices which had sprung up for the evasion of the statute, such as the practice of leasing, renting or hiring the property when the real transaction was a sale on the plan of the vendee receiving possession and paying the purchase money in installments.
This statute has no application to the case in hand,, where the terms of the sale are cash on delivery. In such case there is nothing to record, so as to notify subsequent creditors and purchasers, as there may be in conditional sales.
It was held by this court prior to the passage of sections 5178 and 5180, Revised Statutes supra, that in a sale of chattels when possession was delivered to the vendee, if by express agreement the title is to remain in the seller until the price is paid, the right of
Where it is clear that payment is a condition precedent or at least concurrent, it necessarily follows that the right of property does not pass until that is done, even though the article is delivered, unless the circumstances show that the vendor thereby waived his right to immediate payment.. The sale here being simply for “cash,” no express reservation of title being made, the voluntary delivery and transfer of the bill of lading might well be considered, at least prima facie,, a waiver of prepayment, especially as to third parties. Smith v. Dennie, 6 Pick. 262; Carleton v. Sumner, 4 Pick. 516; Farlow v. Ellis, 15 Gray 229; Scudder v. Bradbury, 106 Mass. 422; Hammett v. Linneman, 48 N. Y. 399; Bowen v. Burk, 13 Penn. St. 146; Upton v. Cotton Mills, 111 Mass. 446; Mixer v. Cook, 31 Me. 340; Freeman v. Nichols, 116 Mass. 309; Haskins v. Warren, 115 Mass. 514; Goodwin v. Railroad, 111 Mass. 487.
In the case in hand, a bill of lading for the wheat had been issued to plaintiff by the railroad company into whose cars the wheat had already been loaded for shipment, which bill of lading was transferred by plaintiff to the Imboden Commission Co. and by the last named surrendered to the railroad company and another bill of lading issued by the railroad company to Imboden Commission Co. By section 744, Revised Statutes, 1889, bills of lading of the kind now under consideration are made negotiable. And by section 745 of the same statute, it is provided that any and all
The evidence shows very conclusively that there was no intention on the part of plaintiff to waive the cash payment for the wheat, but it was guilty of laches in suffering it to be shipped from Kansas City, and in delivering its bill of lading to the Imboden Commission Co., and it would in consequence thereof be estopped from claiming the wheat or the proceeds arising from the sale thereof in the hands of an innocent holder without notice. The sale of the wheat being a cash sale, if the defendant knew that the purchase money therefor had not been paid by Imboden Commission Co. or that Imboden Commission Co. was not the owner of the wheat at the time it, defendant, received the draft in payment therefor from Albers & Co. through their correspondent in St. Louis, and applied it to the credit of Imboden Commission Co., it is not an innocent purchaser and must account to plaintiff for the amount of the purchase money according to the contract price, between plaintiff and the Imboden Commission Co. These questions were fairly presented to the jury by the instructions of the court, and their finding was against the theory of innocence on the part of the defendant.
It makes no difference that Imboden Commission Co. was indebted to defendant at the time of the transaction and prior thereto; .it could not apply the funds that in legal contemplation belonged to another party to the payment of its debts, without its knowl
We do not think that the bringing of the attachment suit by plaintiff against the Imboden Commission Co., nor the purchase by plaintiff of the office fixtures amounted in law to an affirmance of the sale of the wheat by plaintiff to that company. This precise question was before the St. Louis Court of Appeals in the case of Anchor Milling Company v. Walsh, 20 Mo. App. 107, where the facts were that the plaintiff had brought suit and levied an attachment upon certain property of the defendant, thereby asserting the defendant’s title to it. Afterwards the plaintiff, finding that it had misconceived its remedy, it dismissed the attachment suit and brought replevin, thereby asserting the property belonged to it. The court held that there was no ‘ ‘estoppel by record, for the attachment has not proceeded to judgment. There is no estoppel in pais, for the defendant has not taken such action in consequence of the suing out. of the attachment that he will receive detriment in a legal sense from the conduct of the plaintiff in changing his position and pursuing a different remedy. If the rule of the circuit, court were generalized, it would amount to this, that a litigant elects his remedy in every case, in the first instance, at his peril. If he finds that he has made a mistake, whether in consequence of erroneous views of law or fact, he has nevertheless estopped himself from
So it was held by the supreme court of Indiana in the case of Bunch v. Grave, 12 N. E. Rep. 517, that where a party who imagines he has two or more remedies, or who misconceives his rights, is not to be •deprived of all remedy because he first tries a wrong ■one. See also Kelsey v. Murphy, 26 Pa. St. 78-83; Morris v. Rexford, 18 N. Y. 552; Lee v. Templeton, 73 Ind. 315. The'bringing of the attachment suit had a tendency to show a waiver by plaintiff of the payment •of the purchase money for the wheat, but as the writ was dismissed before judgment thereon, it was no affirmance of the sale, nor was it a bar to the prosecution of this suit. Judgment affirmed. All concur.