| Mo. | Oct 15, 1887
Lead Opinion
This is a replevin suit to recover from defendant the possession of certain goods, in which plaintiff had judgment, from which defendant has appealed, and assigns as the chief ground of error the action of the court in giving, at the close of all the evidence, an instruction to the effect, that, under the evidence, the finding must be for the plaintiff.
The evidence tends to disclose the following state of facts : That plaintiff, who was an auctioneer and commission merchant in the city of St. Louis, on the twelfth day of July, 1883, received into his possession from one Landecker, the lot of mixed clothing, in controversy in
The evidence further tended to show that the goods sold by Levy to Landecker were, worth about six thousand dollars, and that the consideration expressed in the bill of sale was twenty-five hundred dollars; that Levy at that time was- heavily in debt; that, immediately after the sale, the goods were removed by Landecker to plaintiff’s commission house in teams furnished by plaintiff for that purpose; that, after the goods were delivered to plaintiff, and after he had advanced on the same twenty-five hundred dollars- to» Landecker, plaintiff was notified by an attorney of one of the plaintiffs in the attachment suits, that the-sale'by Levy to Landecker was made in fraud of his creditors.
The undisputed facts in the case show that the •goods in question were consigned and delivered by Landecker to plaintiff as an auctioneer and commission merchant, to be sold by him on commission, and that he advanced the sum of twenty-five hundred dollars on the same without notice or knowledge of the fraud •between Levy and Landecker, if . any such fraud there was. Under .this state of facts, plaintiff had a right to the possession .of the goods as against an attaching creditor; of which possession he could not be deprived either by the consignor or creditor of the consignor, till his advances, commissions, and charges were tendered him, and he was made whole. The principle here stated is supported by the following authorities: Baugh v. Kilpatrick, 54 Pa. St. 84; Monteith v. Printing Co., 16 Mo. App. 450" court="Mo. Ct. App." date_filed="1885-02-10" href="https://app.midpage.ai/document/montieth-v-great-western-printing-co-6614557?utm_source=webapp" opinion_id="6614557">16 Mo. App. 450; Drake on Attach., pp. 204-5, sec. 245 ; Jones on Pledges, p. 295, sec. 372, and p. 474, sec. 631; Story on Agency, p. 30, sec. 27.
It appears that plaintiff had in his hands fourteen thousand four hundred dollars, the proceeds of the sale of the goods which, by virtue of an order made in this .suit, had been taken from the possession of defendant. Under the judgment, plaintiff recovered the whole of said amount, and it is insisted that judgment for the surplus remaining in his hands, after deducting from the whole amount of the proceeds of the sale his advancement, commissions, and proper charges, should have been rendered for the defendant, and in support of this view we have been cited to the cases of Dilworih v. McKelvy, 30 Mo. 154; Boutelle v. Warne, 62 Mo. 354, and Dougherty v. Cooper, 77 Mo. 534-6. It is the opinion, of a majority of the court, that the above cases sustain the contention, and that' the point is well taken (to which I do
that reversible error was committed, and it is hereby ordered that the judgment be reversed and cause remanded to be proceeded with in conformity with this opinion.
Concurrence Opinion
Concurring. — We think it proper to make these additional remarks to the opinion filed in this cause: There is evidence tending to prove the following facts: Levy owned a stock of goods valued at six thousand dollars. He and Landecker combined together to defraud the creditors of Levy; and pursuant thereto, Levy sold the goods to Landecker for the agreed- consideration of twenty-five hundred dollars on the twelfth of July, 1883. On the same day, Landecker turned the goods over to the plaintiff, an auctioneer and commission merchant, who advanced to Landecker thereon the sum of twenty-five hundred dollars. While the goods were being delivered to plaintiff, the defendant, as sheriff, seized them under the writs of attachment sued out by the creditors of Levy. Plaintiff then brought this suit of replevin, and under the writ got possession of the goods, and subsequently sold them for forty-four hundred dollars. The trial court directed a judgment for the plaintiff.
It is conceded that, in an action of replevin, if one party shows that he has a special interest in the property and the other has no interest therein, is an entire stranger, then the party having the special interest, as a lien thereon for advances, may recover the goods
In the casó first cited the suit was by the general •owner of the property against a person claiming a lien on it. The verdict was for defendant, and then followed an assessment of the full value of the property in favor of the defendant. This court then said the judgment should have been for the value of the defendant’s interest, ■or for a-return of the property until that value was paid. 11 makes no difference whether the party having a special lien on the property is plaintiff or defendant in the replevin suit. In either case his rights can be adjusted. As said in the case of Dilworth v. McKelvy, supra: “The judgment in each case must be modified
In the present case the plaintiff was entitled to retain the alnount of his advances and commissions; and, after the payment of the costs of this suit, the residue of the forty-four hundred dollars should be paid to the sheriff. This, of course, on the theory that the sale by Levy to Landecker was fraudulent. As the rights of the parties may be adjusted in this suit, it cannot be said that the sheriff was bound to tender the advances to plaintiff before the seizure of the goods under the writs of attachment. He had the right to contest the amount and validity of the plaintiff’s claim. The only result of a failure to make the tender is, that the costs of this suit must be paid by the defendant, as the plaintiff’s claim for his advances is a valid one. It can make no sort of difference that Landecker is no party to this suit. If the sheriff wrongfully seized his property he has various remedies. The argument made in the briefs, that the whole of the goods should be returned to plaintiff, so that he may account to Landecker, is no more than to say, that the property must be returned to a fraudulent vendee and thus the fraudulent scheme becomes ratified by the judgment of the court. The law contemplates no such results, as we
Dissenting Opinion
Dissenting. — I do not concur in reversing the judgment because I do not understand the case of Dilworth v. McKelvy, supra, subsequently. followed in the cases of Boutelle v. Warne and Dougherty v. Cooper, supra, to go any further than to declare that, as between a special and general owner of property involved in a replevin suit, their rights and equities may be adjusted, and that, when adjusted, such adjustment is final. The rule does not apply, and the opinion so states, when an entire stranger is a party, as I think the defendant in this case is. Landecker, the consignor of plaintiff and general owner, is not a party to the suit, and any judgment for that reason rendered against the plaintiff, based upon the fraud of Levy,, would not bind him.