33 Mo. App. 297 | Mo. Ct. App. | 1889
delivered the opinion of the court.
An action of trover originating in the circuit court of the- city of St. Louis, where on a trial before the court sitting as a jury judgment was rendered for plaintiff in the sum of $2,095.58. Motions in arrest of judgment and for new trial were filed, and being overruled the case comes here by appeal.
The importance of the principle involved in the case has induced us to set out the pleadings in full. The petition was filed March 21, 1885, and is as follows:
“Plaintiff states that the' defendant Isaac M. Mason, is and at the times hereinafter mentioned and referred to was, the sheriff of and for the city of St. Louis ; and that the defendant, the Continental Bank, is and at the said times was a corporation duly incorporated under the laws of this state ; and that at all times hereinafter mentioned and referred to there was pending in said circuit court for said city of St. Louis an action wherein said Continental Bank was plaintiff and the Jacob Ambs Distilling Company was defendant; that such proceedings were heretofore had in said last-mentioned cause, that heretofore, to-wit, on the twenty-third day of August, • 1884, a writ of attachment was duly sued out and was fully issued under the seal of said court and the hand of its clerk therein, which said writ was directed and was then and there on said last-named day delivered to said Mason as such sheriff as aforesaid and commanded said sheriff among other things to attach the lands, tenements, goods, chattels, rights, moneys, credits, evidences of debt and effects of*303 said Jacob Ambs Distilling Company or so much thereof as would be sufficient to satisfy the claim of said Continental Bank, as sworn to in said cause, with interest and costs ; that thereafter, to-wit, on-day of August, 1884, said Isaac M. Mason, as such sheriff as, aforesaid, by direction of said Continental Bank, levied said writs upon and under the same undertook to attach credits and claims which the plaintiff herein then had and owned against various and sundry persons; 'that the paper hereto attached and marked Exhibit A is a correct statement of the names of the debtors respectively of such claims and of the amount owing on each claim ; that said credits and claims were demands upon open accounts which the various debtors owing the same had contracted with said Jacob Ambs Distilling Company for merchandise sold and delivered to them, respectively, by said Jacob Ambs Distilling Company, and had been, prior to the attachment thereof as aforesaid, and to the issue of said writ of attachment, assigned and transferred for value by said Jacob Ambs Distilling Company to the plaintiff herein, the said John Joseph Kreher, and that the defendants herein were well aware thereof at the time of said levy and made the said levy to vex, harass and oppress this plaintiff; that the defendants herein converted to their own use the said credits and demands of the plaintiff herein, and that the plaintiff herein was thereby damaged in the sum of twenty-two hundred dollars.
“ Wherefore the plaintiff prays for judgment against the defendant herein in the sum of twenty-two hundred dollars.”
“ EXHIBIT A.”
“Names of Amounts owing by
Debtors. them respectively.
L. Woelfle............................$ 78.50.
A. M. Swanson........................ 24.90.
F. Stoeckli........................... 75.45.
*304 Peterson & Conniff.................. 687.24.
John A. Fischer...................... 169.75.
A. D. Stever.......................... 365.95.
Vogel &. Buechler..................... 162.50.
Gr. W. Scott.......................... 140.04.
E! Morllson......................... 99.25.
Florian Spolti....................... 82.50.”
To which the defendant filed the following answer:
“Nowat this day come the defendants herein and answering plaintiff’s petition deny each and every allegation therein contained. Further answering herein these defendants say that on or about the twenty-first day of August, A. D., 1884, the Jacob Ambs Distilling Company, a corporation organized under the laws of the state of Missouri, and engaged in the business of buying, selling, and dealing in all kinds of liquors, and being the same distilling company referred to in plaintiff’s petition, and being then and there wholly insolvent and unable to pay its debts, for the purpose of hindering, delaying and defrauding its creditors, by and with the sanction of its officers and board of directors, transferred to Jacob Ambs, one of the directors and also the president of said corporation, a large stock of merchandise then in the store of said distilling co mpany, and to the Mechanics’ Bank of the city of St. Louis, a small portion of its assets, and to the plaintiff herein and others, being, however, but a small minority of all its creditors, and leaving wholly unpaid large sums of money then due and owing by said distilling company to divers and sundry pérsbns, including this defendant, the Continental Bank of St. Louis, and amongst said transfers was the transfer and assignment of the accounts to the plaintiff in this suit and referred to in plaintiff ’ s petition.
“That said pretended transfer included the claims and -credits which the petition herein alleges and charges the defendant Mason levied upon under said writ of attachment, and this defendant says that said pretended*305 transfer by said Jacob Ambs Distilling Company to the plaintiff of said accounts, credits and claims, on account of indebtedness alleged to have been owing upon open account to said Jacob Ambs, were fraudulent on the part of said distilling company for the reason that the object and purpose of said Jacob Ambs Distilling Company in so transferring said accounts was to hinder, delay and defraud their creditors, of which fact the plaintiff had notice at the time the said pretended transfers of said accounts, credits and claims were made to him ; that the said transfer of said stock of merchandise and open accounts to said Jacob Ambs and to others on said twenty-first day of August, 1884, embraced all of the assets of said corporation and were designed by said distilling company, as plaintiff well knew, to place all of said assets of said corporation beyond the reach of its creditors and particularly this defendant, the Continental Bank, which then and there had claims against said distilling company amounting to more than the sum of twenty thousand dollars, and these defendants say that it was the duty of the officers and directors of said distilling company under the law, on said twenty-first day of August, 1884, and when said corporation was insolvent, to have ratably distributed the assets of said distilling company amongst all of its creditors.
“That it was the intention of the officers and directors of said corporation in so conveying and transferring all of the assets of said distilling company to discontinue the business of said corporation and thereby wind up.its business affairs, and that by reason of said transfer of said assets said corporation then and there became and was dissolved.”
A reply to the answer denying each and every allegation of new matter set up constituted all the pleadings.
The facts, as disclosed by the evidence, are for the
We shall not attempt to set out the evidence in full in this opinion ; for a proper understanding of the case it is enough to say that the evidence shows that John J. Kreher, the plaintiff, a half brother of Jacob Ambs, president of the Jacob Ambs Distilling Company, was an accommodation endorser on a note of the distilling company for four thousand dollars, held by the Continental Bank, which note was dated August 14, 1884, and due in fifteen days after date. Said Kreher was also endorser on another note for said company for. two hundred and fifty dollars, dated June 5, 1884, payable ninety days after date. Plaintiff also held the note of the distilling company payable to himself for $425.15, dated August 1, 1884, payable sixty days after date, and a due-bill for $191.11, dated May 3, 1883.
On August 21, 1884, plaintiff, being aware of the financial embarrassment of the company and the contemplated disposition of its assets to certain parties, agreed to assume payment of said accommodation notes and release the distilling company from all liability to him in consideration of an assignment to him of certain accounts.
In pursuance of this agreement, Aug. Ambs, secretary, on the morning of August 23, delivered to plaintiff a schedule of accounts showing the name and address of each debtor and the balance due.
Said schedule comprised forty-seven names and aggregated in amount $5,078.93. Attached thereto was a general assignment and transfer by the distilling company to plaintiff of all of said claims. No entry was made upon the books of said distilling company indicating the assignment of any accounts, but the accounts thus assigned were each closed and balanced on the
In the afternoon of August 23 an attachment, based upon a claim for twenty-one hundred dollars, was issued in favor of the Continental Bank against the Ambs Distilling Company and the writ delivered to sheriff Mason, who at once proceeded to the store of the distilling company and executed the writ by seizing all the property which was visible. The vault being closed, the sheriff assumed that it contained the books of account and other papers subject to seizure, and thereupon made the following return upon the writ: “Executed this writ in the city of St. Louis this twenty-third day of August, 1884, by levying upon, seizing, and taking into my custody as property of defendant, at 113 North Second street, the following described personal property, to-wit: A stock of liquors, wines and cigars, all the books and book-accounts, office fixtures, safe and furniture, and miscellaneous articles.”
The vault, as the sheriff discovered upon gaining access thereto subsequently, contained a large number of documents, papers, and account-books of previous years, but the books containing the accounts which are the subject of this action had been removed from the building, as before stated, prior to said levy, and were not therefore included or affected by said levy and return.
Afterwards, on August 30, Mr. Goldsmith informed the sheriff that certain account-books of the Ambs Distilling Company (the ledger, journal and cash-books containing these accounts) had been placed in his
The sheriff had no knowledge or information that any of the accounts had been assigned, or that any one claimed an interest therein until September 24, 1884, when Mr. Goldsmith called at his office and stated that the firm represented a number of parties to whom accounts had been assigned and wanted to know whether, under the levy, he claimed all the accounts in the books, including the assigned as well as unassigned accounts, whereupon the sheriff replied that he claimed all the accounts, and at Mr. Goldsmith’s request gave him the following writing : “In answer to your inquiry in regard to my attaching the books of accounts of the Ambs Distilling Company, I have attached all of them, the assigned and unassigned accounts.” Mr. Goldsmith did not, at this interview, or at any other time, inform the sheriff what particular accounts he referred to, nor how many, nor what parties he represented. Neither did he make any claim or demand on behalf of any one, nor question the right of the sheriff to hold all the accounts. The sheriff retained custody of the books without further action until he assumed charge in the capacity of receiver under the provisions of the statute. The index was missing,' and Ambs having failed upon notice to produce it, the receiver prepared another, and thus discovered that there stood on the ledger three hundred and ninety-three accounts, of which one hundred and forty-two had been balanced by credits of cash as of August 21, 1884. The fact that one hundred and forty-two of the ledger accounts appeared balanced by cash entries,, without “folio numbers,” on
“Mr.................:......,
“On the twenty-third day of August,. 1884, by virtue of a writ of attachment issued by the clerk of the circuit court of the city of St. Louis, and to me directed, being No. 352, returnable to the October term, 1884, in favor of the Continental Bank, and against the Jacob Ambs Distilling Company, and in pursuance of section 431, Revised Statutes of Missouri, by virtue of which I, as sheriff, act as receiver, I hereby notify you that the books of the said Jacob Ambs Distilling Company show that you are indebted to it in the sum of $.....; which amount please remit.”
Only one debtor responded in any manner to .the receiver’s notice and that was Peters & Conniff. Said firm (whose account is embraced in this action) appeared on the ledger as owing $687.24, and on November 18, 1884, they remitted by letter to Mason, as receiver, $253.93, claiming that the account stated was incorrect, and that the latter sum was all they owed, and all they would pay. Mason took no other steps, either as sheriff or receiver, concerning the books, accounts or debtors; neither did the Continental Bank. And the above-mentioned sum represents the entire amount realized by seizure of books.
Appellants admit that the receiver’s notices sent out as aforesaid included the debtors whose accounts are made the subject of this action, and it further appears that all of said debtors except two, Scott and
Plaintiff testified that as soon as the assigned accounts were delivered to him, August 23, he, in conjunction with Aug. Ambs, secretary of the corporation, addressed notices to the various debtors, informing them of the transfer of the accounts to the plaintiff and soliciting payment in his behalf. Further, that he at once placed said accounts in the hands of Louis Ambs, Otto Ambs and one Canmann, all traveling men, who traversed the territory of the debtors and made collections for him; that he continued to make collections even after the receiver had sent out his notices, and in fact collected “about one hundred and fifty dollars upon the accounts assigned since this suit was brought, on March 21, 1885.”
It may be remarked here that the court in rendering judgment deducted from the sum claimed in the petition $140.85 as the amount which the evidence showed that plaintiff had collected on three of the accounts included in this action. •
Plaintiff further states that in course of collection he closed a number of accounts by taking acceptances of the debtors, some of which matured and were paid subsequent to date of receiver’s notices ; that after the issue of said receiver’s notices he closed the account of Christ. Dellen (whose account is included in this action) by taking from him an acceptance of the amount of his account, $96.45 ; that in settlement of John A. Fisher’s account (which account is included in this action), he holds a draft for the amount, $169.74, dated July 10, 1884, payable to plaintiff’s order and accepted by Fisher September 26. Plaintiff stated that he had collected in cash $2,518 of the accounts thus • assigned to him. Plaintiff testified that Peterson & Conniff had written him a response to his demand complaining of the quality of the goods furnished them and refusing to pay
The correctness of the accounts embraced in this action was not established by evidence other than the testimony of the shipping clerk to the effect that he forwarded the goods. Whether they were received or were satisfactory, does not appear. Neither was there any evidence tending to show the value of the goods, the price agreed to be paid, the credits to which accounts were entitled, or the balance due. There was no evidence that said accounts, eleven in number, were collectible. In fact the contrary is clearly implied by the acknowledged and unexplained failure of plaintiff to collect these as he did the other thirty-seven.
Plaintiff does not show or claim in his evidence that he was in anywise obstructed or impeded as to collections by word or deed of defendants, or that any of the debtors refused or delayed payment to him by reason of the aforesaid attachment.
The court having tried the case sitting as a jury the
To hold that a sheriff becomes a trespasser in seizing under an appropriate writ account-books, confessedly the property of the defendant, for the reason that the accounts therein entered had been previously assigned to a third party, would be unreasonable., The record before us does not disclose that the sheriff had any notice of the assignment of the accounts ; there was no entry on the books indicating that fact, but if there had been, it would have been immaterial as affecting the legality of the seizure of the books, even if the assignment had been endorsed upon every ledger account
The statutes of Minnesota, Wisconsin, and New York, authorize the seizure of books of account and provide that credits shall be attached by leaving with the debtors a copy of the writ with notice of the attachment, and the sheriff is empowered by statute to institute, suit in his ' own name for 'the purpose of collecting the debts thus attached. But it has uniformly been held in those states that a seizure of books of accounts fixes no lien on the accounts therein, and the sheriff can maintain no suit for their collection until he shall have first attached the same by notice to the debtors in the manner and form provided. The accounts are not susceptible to levy or attachment. Swart v. Thomas, 26 Minn. 141 ; Browner v. Smith, 17 Wis. 410 ; Clark v. ' Warren, 7 Bans. 180 ; Nassau Bank v. Tandes, 8 N. Y. St. R. 415. The statutes of this state are unlike the foregoing in this : The sheriff, as such, is not authorized to collect debts or credits which may have been
Our statute, in empowering the sheriff to seize the account-books, evidently contemplated that such seizure should operate as an involuntary transfer of the rights of the defendant to the debts evidenced thereby, and, like the assignment of any claim or demand not evidenced by the signature of the obligor, it became necesary, in order to consummate the assignment and render the same valid, to notify the debtor. Richardson v. Grigg, 16 Mo. 418. The receiver must give this notice, and until the debtor is notified he is in nowise affected
In order to establish conversion it must appear that the plaintiff was deprived of his property by an unauthorized act of the defendant. Addison on Torts, 525. 'This same rule is followed in a line of decisions both in England,and in America. Hiort v. Bott, L. R. 9 Ex. 86; Hollis v. Howler, House of Lords, July 6, 1875 ; Pease v. Smith, 61 N. Y. 477. In the latter case the court uses the following language: “Conversion is defined to be. an unauthorized act which deprives another of his property permanently or for an indefinite time.” “To maintain trover or trespass de bonis asportatis, evidence of an actual forcible dispossession of the plaintiff is not necessary-; any unlawful interference with the property or exercise of dominion over it, by which the owner is damnified, is sufficient.” Phillips v. Hall, 8 Wend. 610.
The supreme court of Massachusetts, in a well-written opinion by Field, J., in discussing this subject, says: “Conversion is based upon the idea of an assumption by the defendant of a right of property or a right of dominion over the thing converted, which casts upon him all the risks of an owner, and it is therefore not every wrongful intermeddling with or wrongul asportation or wrongful detention of personal property, that amounts to a conversion. * * * Acts which do not in themselves imply an assertion of title * * * will not sustain an action of trover.” Spooner v. Manchester, 133 Mass. 270. So in Same v. Holmes, 102 Mass. 503, Mr. Justice Gray says that the action of trover “ cannot be maintained without proof that the defendant either did some positive wrongful act with the intention to appropriate the property to himself or to deprive the
Now, if we are correct as to these propositions, and applying them to the evidence before us, we, can but conclude that the plaintiff was not in any wise deprived of his property by the acts of defendants in the premises. The seizure of the books in no respect concerned him, and the notice sent out by the sheriff as receiver put no legal obstacle between him and the debtors. He had the accounts in his possession and was in a position to enforce collection. It is not' shown that any attempt was made to collect them, or that any debtor refused to pay. It is conceded that defendants herein did not collect these debts, then the. question arises, did they by the exercise of dominion over them prevent respondent from collecting the same? The word “dominion,” as used in the authorities, necessarily means the power to control, the power of governing that over which authority is exercised, and any unauthorized exercise of such power must naturally be inconsistent with, and subversive of,-the owner’s rights, but without such power an attempt to dxercise dominion is simply futile and fraught with no consequences. t - -
Conversion by the exercise of dominion, and thereby interfering with the rights of the owner, occurs when a party, under pretense of right, or colore officii, without taking manual possession but still in proximity to the chattel, and with power to reduce the same to possession, declares that he does, or will, take possession and the owner -yields to the circumstances, and is thereby virtually dispossessed. In such cases it is held
“It is true that to constitute conversion, a manual taking is not necessary; but where words are relied on, they must be uttered under such circumstances, in proximity to the property, as to show a defiance of the owner’s right, a determination to exercise dominion and control over the property, and to exclude the owner from exercising his right.” Gillett v. Roberts, 57 N. Y. 28.
£ £ The officer should do that which would amount to change of possession, or something that would be equivalent to claim of dominion, coupled with a power to exercise it.” Crawford v. Newell, 23 Iowa 453.
An attaching officer can be held liable as for conversion only when he takes the property into such possession, actual or constructive, as would entitle him to maintain an action against another party taking the same way. 6 Wait’s Actions and Defenses, p. 200, sec. 15, and cases cited.
In a case arising in Minnesota, the sheriff under attachment seized certain books of accounts, and assumed to attach the accounts therein by making a return that he did so levy. The debtors were not brought within the jurisdiction of the court, — that is to say, the sheriff did not at the time leave with them severally a certified copy of the writ and notice, as required by the statute. Said accounts, to the amount of twenty-one hundred dollars, had been previously assigned to a third party by the attachment defendant. The sheriff only collected thirty-eight dollars. In an action by the assignee of said accounts against the sheriff for conversion, it was held that, “ a levy upon the account-books did not constitute a levy upon the accounts or debts charged in them ; nor, though the levy is unlawful, does it constitute a conversion of the accounts.” The acts complained of did not constitute an interference with plaintiff’s title, possession or control of the book-accounts, nor did they amount even 'to the assertion of any right respecting them on the part of the sheriff. It is not enough that he may have deemed his acts to have been, not only an assertion and exercise of dominion over the property, but an actual seizure of it under the writ. It was not conversion. Lesher v. Gethman, 30 Minn. 321.
It appears that the sheriff collected from Peters & Conniff, of the amount shown by the books to be due from them to the Jacob Ambs Distilling Company, the sum of $253.93. On a reconsideration of the question we have come to the conclusion that he. cannot be held liable to the plaintiff for this item as for a conversion. If we are right in our conclusion, that a simple contract debt, — not being a thing of substance, — not evidenced by any note, bond or other writing to which the law
It does not necessarily follow from this that the plaintiff is without other remedy than his action against his own debtor. Section 430, Revised Statutes, provides that “the receiver shall, when required, report his proceedings to the court, and shall hold all moneys collected and all property received by him subject to the order of the court.” It may well be that, under this section, the court would have, on equitable principles, the power, on the petition of the plaintiff, and a showing of the facts, to order the sheriff to turn over to him the fund thus coilected from his debtor ; but it is clear that the sheriff cannot be charged in respect of it as a tort-feasor.
The judgment of the trial court will, with the con-, currence of Judge Thompson, be reversed.
