| Mo. | Oct 15, 1886
This was an action of replevin commenced in the circuit court of Jasper county and removed by change of venue to Greene county. The plaintiffs were manufacturers of soap at Kansas City, and on the fourteenth of November, 1880, shipped a car load of soap to the defendant’s assignors at Joplin, Missouri. On the sixth of'December, 1880, Fallís & ¡Lichliter failed and made a voluntary assignment to .the defendant. At the time of the assignment they .had nearly all the car load of soap in their store, and . the defendant claims the property by virtue of the deed of assignment. There was evidence tending to show
“1. The court declares the law to be, that if it appears from the evidence that the goods replevied in this snit were part of a car load lot which the plaintiffs shipped to Fallis & Lichliter, and that they were to sell the goods at a certain price to be fixed by the plaintiffs, and that Fallis & Lichliter upon all sales were to receive fifteen or twenty cents a box, according to the size of the box, whether sold by themselves or plaintiffs’ agent, O. H. Brown, and that Fallis & Lichliter were to pay over at intervals of from sixty to seventy-five days the proceeds of such sales to plaintiffs, as their agent, Brown, would come around on his trip, and that Fallis & Lichliter were to pay for no goods in said car load lot until after the same had been sold, then the transaction between plaintiffs and Fallis & Lichliter was not a sale of said car load of soap, but Was a consignment for sale, and that the title of the goods did not vest in Fallis & Lichliter, and the plaintiffs are entitled to recover.”
The defendant makes no appearance here and it is conjectured that he succeeded below by reason of section 2507, Revised Statutes,, which isas follows: “In all cases where any personal property shall be sold to any person, to be paid for in whole, or in part, in installments, or shall be leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer, or deliverer ©f the same, until such sum or the value of such prop
This section was adopted in 1877 and by the same act, section 10, of the act relating to fraudulent conveyances, was amended so as to read as it now appears as section 2505, Revised Statutes, 1879. Before this act it had been often held that the vendor of personal property might, by his contract with the vendee, reserve the title in himself until payment of the consideration, and that such reservation was valid even as against a bonafi.de purchaser, though the contract was not acknowledged or recorded. 71 Mo. 121" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/sumner-v-cottey-8006403?utm_source=webapp" opinion_id="8006403">71 Mo. 121, and cases there cited.
No doubt the act of 1877 was designed to, and does, work a radical change in the law as respects these conditional contracts and leases. But does the ■section above quoted apply to the case stated in the instruction? We are of the opinion it does not. The ■case stated in the instruction is simply a consignment of goods by one merchant to another to be sold on commission. It is not a sale, lease, hiring or delivery of goods on condition that the title should pass to the vendee, or lessee, of other person, on payment of the price or value of the property. The consignees had, and were to have, power to sell, and that was the very purpose of the transaction. As was said in Coover v. Johnson, 86 Mo. 533" court="Mo." date_filed="1885-10-15" href="https://app.midpage.ai/document/coover-v-johnson-8008413?utm_source=webapp" opinion_id="8008413">86 Mo. 533, the act of 1877 was intended to prevent secret and unrecorded contracts of sales from being used to the detriment of unsuspecting creditors, or purchasers from the vendee. It doubtless also aims at transactions in the nature of conditional sales, though called a leasing, hiring, or by some other name. Again, if the transaction should turn out to be within
The judgment is, therefore, reversed and the cause remanded.