175 Mo. 518 | Mo. | 1903
— This is an action of trover and conversion to recover the value of thirteen cases and seven hales of dry goods, clothing, etc., and was brought and tried in the Jackson Circuit Court, and resulted in a verdict for defendant. Plaintiff appeals.
On November 4, 1895, one Herman Goldberg, a merchant of Raton, New Mexico, sold and delivered these goods to the plaintiff, Bertha Rosencranz. Swofford Brothers Dry Goods Company was and is a wholesale clothing house of Kansas City, Missouri. Mrs. Bertha Rosencranz, the plaintiff, is a citizen of Chicago, Illinois, and her husband, a brother-in-law of Goldberg. Goldberg had been dealing with Swofford Brothers for some time prior to August 24, 1895, and that company had sold him goods on credit, but not in large quantities. On the last-mentioned date Goldberg came to Kansas City to buy a bill of goods of Swofford Brothers and others. On that day he made a statement of his financial standing to Swofford Brothers in which it appears his total assets were $7,550 and his liabilities $2,621. Among his liabilities he scheduled a debt for borrowed money to J. B. Rosencranz for $2,100, and gave as reference J. Rosencranz, 215 Halstead street, Chicago. At the same time he stated that J. Rosencranz was his brother-in-law, and the debt of $2,100 was the balance of purchase price of original stock bought by Goldberg of Rosencranz, and the latter was willing to carry said indebtedness, and not allow it to bother him in paying his other creditors, and thereupon Swofford Brothers sold him goods to the amount of $1,374.98. • On the 2nd day of October, 1895, after the shipment of the goods, the credit man of Swofford Brothers, in the name of said firm, wrote J. Rosencranz the following letter:
“Kansas City, Mo., 10-2-’95.
“ J. Rosencranz, 215 Van Burén St., Chicago, Ills.
“Dear Sir: In a statement rendered us in August last by Mr. Herman Goldberg of Raton, N. M., he gave
“Tours truly,
“Swofford Bros. Dry Goods Co.”
And on October 6, 1895, the following reply was received:
“Chicago, 111., 10-5-’95.
“Messrs. Swofford Bros., Kansas City, Mo.
“Gentlemen: Tours of recent date was received by me. Replying to same, I will say that the statement made to you in August last by Herman Goldberg" of Raton, N. M., regarding the indebtedness to me of $2,100, was correct.
“Tours respectfully,
“B. Rosenoranz.”
The plaintiff offered evidence that afterward on the 3rd day of November, 1895, the plaintiff through her husband J. Rosencranz, acting as her agent, delivered the goods for whose conversion this action was commenced, to the Atchison, Topeka 'and Santa Fe Railroad Company, a common carrier engaged in transporting merchandise from Raton, New Mexico, to Chicago, Illinois, and received a bill of lading in her favor in due form, whereby said company agreed to deliver said goods to her in Chicago, Illinois; that Kansas City, Missouri, is on the line of said railroad between Raton and Chicago. That the defendant, Swofford Brothers, on the 7th day of November,. 1895, sued out an attachment for $1,385.80 in the circuit court of Jackson
Prior to the commencement of the suit in Jackson county, Missouri, the Swofford Brothers Dry Goods Company, having learned of their shipment from Raton,' brought an action by attachment in Johnson county, Kansas, and summoned the railroad company as garnishee. The sheriff, of Johnson county, Kansas, did not succeed in seizing the goods,- and it was learned they had gone into Kansas City, Missouri, where, as-already said, they were levied on by the sheriff of Jackson county, Missouri, and removed from the cars. ‘
It seems this seizure aroused the railroad company, and the Swofford Brothers being anxious to avoid controversy with the railroad, which had a lien-for its freight charges, it was stipulated that the railroad should receive its earned freight. Thereupon Joseph H. Roy took an assignment from the railroad company of its claim for freight lien on the -goods, and the goods were then delivered to Mr. Leftwitch, an employee of defendant Swofford Brothers, under the.
Thereupon by direction of Swofford Brothers, or their attorneys, the goods were then placed in wagons and driven across the State line into Kansas.
The money which was paid by Roy to satisfy the. freight bill was paid by Swofford Brothers. When they reached Kansas, Cummins, the deputy sheriff of Wyandotte county, Kansas, under the direction of Swoffoi'd Brothers, levied upon the goods. They were marked B. Rosencranz, Chicago, Illinois. This levy was made under a writ of attachment issued by the clerk of Johnson county, Kansas, in the suit commenced there as already noted. It seems no> publication was made in this suit within the forty days required by the laws of Kansas, and subsequently this suit, like the one in Jackson county, Missouri, was also dismissed, and no further steps taken in it, but prior to its dismissal and while the, goods were still in the hands of the sheriff of Wyandotte county, Kansas, ■ Swofford Brothers Dry Goods Company, the defendant herein, brought still another action in attachment in the common pleas court of Wyandotte county, Kansas, against Goldberg, and by its direction the sheriff of that county levied upon the same goods then in his hands. Constructive service by publication, was then obtained in this last-mentioned case, and judgment taken, and the goods sold, and bought in by defendant. - There was no appearance by Goldberg or Mrs. Rosencranz in any of the cases. Thereupon on January 23, 1896, plaintiff brought this her action against Swofford Brothers for conversion. The defendant in its answer pleaded: first, a general denial; second, an estoppel on the part of plaintiff, by reason of her agreement not to enforce her debt in preference to Goldberg’s other creditors; third, a lien for the amount of the freight paid by defendant; fourth, that the transfer by Goldberg to plaintiff in New Mexico was by the laws of that Territory
The reply denied all new matter and again prayed judgment. Among other instructions plaintiff prayed the court for the following:'
“9. The jury are instructed that if the plaintiff delivered the goods in controversy to the Atchison, Topeka & Santa Pe Eailroad Company, to be transported to Chicago, Illinois, and while enroute to Chicago the same were taken from said company under a writ of attachment, issued at the instance and served under the direction of defendant, and that said attachment suit was dismissed, and that the attorney for said railroad company assigned the lien of said railroad company on said goods for freight and made said assignment to one Eoy, if the jury find that said Eoy was acting for the said defendant in taking said assignment, and that the said defendant, in the name of said Eoy, took possession of said goods at Kansas City, Missouri, then they must find for plaintiff, notwithstanding that said Swofford Brothers Dry Goods Company subsequently caused said goods to be attached.
“10. The jury are instructed that, if said Swofford Brothers attached the said goods at Kansas City, Missouri, and thereafter released their attachment and then sent said goods over into the State of Kansas, of which State the said Goldberg was a non-resident, for the purpose of having the same attached there, the courts of the State of Kansas acquired no jurisdiction over the said goods, and said attachments so issued in the State of Kansas are void, and the jury will entirely disregard them.”
I. Prima facie; plaintiff was and is entitled to the possession of the goods which she shipped from Eaton, New Mexico, to Chicago, or their value.
This has been the common law since the decision in Armory v. Delamirie, 1 Strange 505, wherein it was held that the finder of a jewel w;as entitled to bring trover against one who, having taken the jewel for examination, refused to return it.
In the language of Lord Campbell, “The law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and can not defend himself by showing that there was title in some third person; for against a wrongdoer possession is a title. The law is so stated by the very learned annotator in note to Wilbraham v. Snow, 2 Wm. Saunders 47, and I think it most reasonable law, and essential for the interests of society, that peaceable possession should not be disturbed by wrongdoers. It is not disputed that the jus tertii can hot be set up as a defense to an action of trespass for disturbing the possession. In this respect I see no difference between trespass and trover; for in truth the presumption of law is that the person who has the possession has the property. Can that presumption be rebutted by evidence that the property was ,in a third person, when offered as a defense by one who admits that he himself had no title and was a wrongdoer when he converted the goods? I am of opinion that this can not be done.” [Jefferies v. Railroad (5 El. & Bl.), 85 Eng. Com. L. 802.]
Judge Cooley in his work on Torts (2 Ed.), p. 520, mar. page 445, after reviewing various cases says:
Plaintiff having possession of the goods, the law is that one who has wrongfully obtained the goods from her can not defeat her action by showing title in another without connecting himself with the right of such person.
How has defendant rebutted or attempted to show title out of plaintiff?
It is clear that neither by the attachment suit commenced in the circuit court of Johnson county, Kansas, nor by the attachment sued out in the circuit court of Jackson county, Missouri, was the title of plaintiff in any manner affected, because neither was prosecuted to judgment. The only question, then, is as to the effect of defendant’s judgment in the Wyandotte County Common Pleas Court. This leads us to inquire what jurisdiction the common pleas court acquired over this property as between defendant and plaintiff. Plaintiff, being the shipper and consignee also of the goods, was prima facie the owner thereof, but defendant had the right to attach them if it could establish that the sale and transfer to plaintiff by Goldberg was fraudulent as against defendant, and when the action of defendant was commenced in Kansas City, Missouri, and the goods seized under the writ, the circuit court of Jackson county unquestionably acquired jurisdiction over them, but when defendant by means of attachment
Such was the condition of affairs when defendant removed the property out of this State into Kansas in order that the Kansas writ of attachment could be levied upon it. As already said it seems the Johnson county attachment was levied on the goods in Wyandotte county. For two reasons defendant can not avail itself of that attachment by way of defense. First, because this attachment was, like the Missouri attachment, dismissed without having even gone to judgment and without service on G-oldberg. Second, for the reason that defendant being in possession of the goods in Missouri purely and simply as a trespasser and having taken them into Kansas in order that the writ of attachment in that. State could be levied on them, the levy conferred no jurisdiction, because it was a fraud in law, whatever the intention of defendant was, and this defendant can not avail itself of its wrongful act to confer jurisdiction on the courts of Kansas, and then plead their process’ as a defense to plaintiff’s action for their original and continuing trespass and wrongful conversion.
However honest and valid its claim against Goldberg, and this we do not for a moment question, no valid legal sequestration could follow its illegal act in thus taking the property out of this State and having it attached for its benefit in Kansas. The courts can not and will not countenance such a method of acquiring jurisdiction and the plaintiff is not estopped to question the jurisdiction of a court of a foreign State obtained in such manner and by such means. But as we have said, the levy in the Johnson county case was abandoned and it constitutes
It is apparent then if we are right in holding that the Kansas courts did not and could not acquire jurisdiction over plaintiff’s goods in favor of defendant by illegally taking them- out of this State into Kansas in order that defendant’s attachment in that State might be levied upon them, defendant had no defense to plaintiff’s action by reason of any attachment or judgment liens. Having no title in itself and no lien, can it be heard to justify its seizure and possession of plaintiff’s goods by asserting or showing that the sale from Goldberg to plaintiff was fraudulent as to- Goldberg’s creditors, or in other words, in such case can defendant show title in a third person as a defense ? We think the great weight of authority is that it can not. Cobbey on Replevin (2 Ed.), sec. 786, lays down the rule that, “A defendant who has wrongfully taken possession of the property can not set up as a defense that other persons who are not defendants have a lien on the property which entitles them to its possession: ’ ’
And it was held in Mississippi Mills v. Meyer & Co., 83 Tex. 438, that “the fact that a naked trespasser is a creditor of the owner of the goods, or that the plaintiff’s title may be founded in fraud, will not justify the
Defendant was in no position to avail itself of the fraud of Goldberg, if any, in attempting to defeat his creditors, as it had not acquired Goldberg’s title in any lawful manner, but was a naked trespasser in the -circumstances, and has not connected itself with Goldberg’s possession or title in any lawful manner.
II. Was it open to defendant to avail itself of the lien of the Santa Pe Railway Company for its freight charges?
It is too clear for discussion that the assignment to Roy was for defendant’s benefit. He was ’acting for •defendant’s counsel in taking the assignment and it paid the money to procure the assignment and this was only ■one other step in the general scheme to get the goods out of Missouri into Kansas. If the sheriff of Jackson county had paid the freight bill and the attachment in Missouri had been followed up to judgment and sale, it may be the sheriff would have been allowed this amount, but as this was not done it is obvious that it was his duty when the attachment in Jackson county, Missouri, was dismissed,, to have returned the goods, •either to plaintiff, or her bailee, the railroad company.
In 5 Am. and Eng. Ency. of Law (2 Ed.), p. 420, it is said, “The lien of a railroad company for freight is neither property, nor a debt, but a mere right to have a debt satisfied out of certain specified property, and is •a personal right which can not be sold or assigned.”
In Ames v. Palmer, 42 Me. 197, the Supreme Court ■of Maine said: “It has been repeatedly decided, both in England .and in this country, that the lien of a factor is •a personal -privilege which is not transferable, .-and that no question upon it.can arise except between the principal and factor. [Daubigny v. Duval, 5 D. & E. 604; McCombie v. Davies, 7 East 5; Jones v. Sinclair,
In Holly v. Huggeford, 8 Pick. 73, Parker, C. J.,. said: ‘ ‘ The lien of a factor does not dispossess the owner until the right is exerted by the factor. It continues-only while the factor himself has the possession; and,, therefore, if he pledges the goods for his own debt, or suffers them' to be attached, or otherwise parts with them voluntarily, the lien is lost, and the owner may trace and' recover them, or he may sue in trespass if they are forcibly taken; for his constructive possession continued notwithstanding the lien.” [Lempriere v. Pasley, 2 T. R. 485; Everett v. Saltus, 15 Wend. 478.]
The lien of the Sante Pe Railway Company was no' defense to plaintiff’s right of action in this case. It. ceased when the company assigned or attempted to' assign it to defendant.
III. But the defendant invokes the doctrine of' estoppel against the plaintiff. This it predicates on the statement of Goldberg to defendant when he bought the goods, August 24,1895, to the effect that he was indebted to Roseneranz in the sum of $2,100, but that Roseneranz. was his brother-in-law, and that Roseneranz was willing-to carry said indebtedness and not allow it to bother or interfere with his paying his other creditors, and subsequently in November, 1895, and after defendant had', sold the goods to Goldberg, defendant wrote to J. Rosencranz, advising him of Goldberg’s statement to it, and received a letter from plaintiff in which she says, “replying to same, T will say that the statement made to» you in August last by Herman Goldberg of Raton, N. M., regarding the indebtedness to me of $2,100,,was correct. ’ ’
The question is, was plaintiff, by reason of this representation by Goldberg and her' subsequent letter, estopped to purchase goods of Goldberg to save her debt? It is plain that defendant was notified that Rosencranz was a creditor of Goldberg to the amount of $2,100. There was no concealment of this indebtedness. Without some valid contract binding her to other creditors not to enforce this debt, neither law nor justice would prevent the enforcement of this debt any more than any other obligation owing by Goldberg. Advised of this indebtedness before it sold to Goldberg, defendant took no steps to obtain such an agreement in its favor. It sold him its goods and had no communication with Mrs. Rosencranz for more than two months after-wards. It then wrote her and stated that Goldberg had assured it that she was willing to carry the indebtedness and not allow it to interfere with his paying his other creditors. Her debt was due. She had voluntarily agreed to indulge her debtor, but there was, so far as this record discloses, no consideration for this
It may be that, if to induce defendant to1 sell him goods she had agreed her debt should be made subordinate to any debt hé contracted with it for goods on the strength of her agreement, she might have been es-topped to claim her rights along with, it, but it is apparent it did not act on any such an understanding, but sold him goods'without obtaining any agreement or having any understanding with her.
We are cited by defendant to Bank v. Buck, 123 Mo. 141; but that case is easily distinguished from this in that there the debt and the absolute deeds given to secure it were kept secret, -and Buck and McOrosky permitted to obtain credit from others who extended credit on the faith of their ownership of the property. Here the debt was announced before the goods were sold. No mortgage or other lien had been taken which would give Mrs. Roseneranz any advantage over any other creditor.
All that was represented was by the debtor, and that was that she was willing to indulge him and not prevent his paying others he owed. The element of secrecy and the taking of' a deed which might operate to give her a superior lien is wholly wanting.
Rice v. Bunce, 49 Mo. 231, is also relied on, but in that case one having an equitable interest in land was present whpn it was put up for sale us the property of the person in whom the record showed title. He not only gave np notice of His title, but entered the list of bidders, and by his silence and acts, induced another to expend his money, whereas in this case Goldberg gave notice of the Roseneranz. debt, and Mrs. Rosencyanz did no act, to induce defendant to extend him credit on the assumption that she would not enforce it. At most she
Conceding the full force of the doctrine of estoppel, that one who neglects to speak shall not be heard to do so when his silence or acts have led another to act to his injury, we are unable to find any evidence upon which to estop plaintiff in this case. Her debt was not kept secret. She made no representation to defendant to induce it to sell its goods to Goldberg, and conceding she was willing to indulge her debtor she was in no manner bound to forego the collection of her debt. The cases all agree that there can be no estoppel unless the party who alleges it relied upon the representation, was induced to act by it and thus relying and induced did take some action. Giving now full scope to everything represented by Goldberg, it must have been apparent to any reasonable man contemplating extending him credit, that if he desired to estop Mrs. Rosencranz, something more than her mere gratuitous agreement with Goldberg was required to tie her hands so that she would not be at liberty to- enforce her debt like his other creditors. Defendant was notified. It can not be heard to say in view of the evidence adduced by itself that the truth was unknown to it at the time it sold Goldberg and at the time it credited him. Mrs. Rosencranz asserted the debt which defendant was advised she held, and it knew the full extent to which she was bound not to enforce it, and that.was a gratuitous agreement founded upon no consideration. It sought no greater security- before it sold to him and obtained no more later. We do not think defendant established its estoppel even if it had been in position to do so. .But if it had any equities or could invoke estoppel in a proper case, it can not do so here, for the reason that it stands in this record as a trespasser with no right or title to the property. It acquired no lien or title by its attachment proceedings in Kansas. Plaintiff was in the peaceable possession and if it desired to rely on its es
Whatever the ‘ ‘ confusion ’ ’ which defendant pleads as an extenuation of the methods resorted to for the purpose of giving the Kansas courts jurisdiction, it must be said that plaintiff in no way contributed to it.
While we are satisfied defendant was only attempting to secure' an honest debt, and that there was no wicked purpose in the various steps taken by it, still the courts can- not countenance the extreme methods used in this case to confer jurisdiction on the Kansas courts over plaintiff’s goods. However honest the debt, it can only be enforced in the courts by obtaining jurisdiction in the manner prescribed by the law of the land. The fact of jurisdiction may be inquired into and when obtained by fraud in fact or fraud in law, the judgment may be impeached collaterally.
This principle is well established in Parsons v. Dickinson, 11 Pick. 352; Wood v. Wood, 78 Ky. 624; Dunlap v. Cody, 31 Iowa 260; Duringer v. Moschino, 93 Ind. 495; Deyo v. Jennison, 10 Allen 410; Drake on Attachment, sec. 193; Byler v. Jones, 79 Mo. 263; Capital Bank v. Knox, 47 Mo. 333.
It results that the court erred in refusing plaintiff’s instructions invoking the views we have expressed, and in giving those for defendant. The judgment is reversed and the cause remanded to be proceeded with in accordance with this opinion.