111 Mo. App. 364 | Mo. Ct. App. | 1905
(after stating the facts). — Appellant contends that the court erred in permitting counsel for the respondent to cross-examine appellant’s agent, who claimed to have made the purchase from the Dimension Company for Sondheimer Company, as to. the price paid to the Dimension Lumber Company for the lumber and as to what such lumber was actually worth at the time. There is no force in this contention. Appellant bottomed its case upon the alleged purchase from the Dimension Company. Respondent in his ansAver denied that the Sondheimer Company owned the lumber, thus putting in issue the purchase and every feature of it. The agent at the appellant’s instance had given testimony that he made the purchase and that his company owned the lumber. Respondent certainly had the right to examine and inquire what price was paid, and when and where and how paid, or whether ther,e was anything at all paid, in' order to ascertain whether there had been a valid transaction. It might be made to ap-' pear by such inquiries that there was no valid purchase of the lumber.
So much of section 3410, of the Revised Statutes of 1899, as is pertinent here, provides: “Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property and be followed by an actual and continuous change of possession of the thing sold, shall' be held to be fraudulent and void as against the creditors of the vendor.” The alleged purchase of the lumber was laid on August sixteenth; but not a word in the record indicates the exact date the levy was made thereon except the general trend of the evidence, which treats the two occasions ás having been some time apart. Our Supreme Court in construing this statute has said “The vendee must take actual possession and the possession must be open, notorious and unequivocal, such as to apprise the community or those who are accustomed to deal with the party, that the goods have changed hands and that the title has passed out of the seller and into the purchaser. This must be determined by the vendee’s using the usual mark and indicia of ownership and occupying that relation to the thing sold which owners of property generally sustain to their own property.” Claflin v. Rosenberg, 42 Mo. 439; Lesem v. Herriford, 44 Mo. 323; Burgert v. Brochert, 59 Mo. 80; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; Mills v. Thompson, 72 Mo. 367; Stewart v. Bergstrom, 79 Mo. 524; State ex rel. v. Goetz, 131 Mo. 675, 33 S. W. 161; Steppacher, etc., Co. v. Saunders, 74 Mo. App. 570;
Upon this state of facts the court should have taken the case from the jury. It appearing that some days had elapsed after the alleged purchase prior to the levy, the change of possession not having been such as the statute requires, as appears from the undisputed facts, the sale should have been declared to be fraudulent as a matter of law. State ex. rel. v. Goetz, 131 Mo. 675, 33 S. W. 161; Wright v. McCormick, 67 Mo. 426; Stewart v. Bergstrom, 79 Mo. 524; State to use v. Hellman, 20 Mo. App. 304; Reynolds v. Beck, 83 S. W. 292; Knoop ex rel. v. Distilling Co., 26 Mo. App. 303; State v. Durant, 69 Mo. App. 390; Claflin v. Rosenberg, 42 Mo. 439.
Stewart v. Bergstrom, 79 Mo. 524, is a case where Bergstrom had purchased. a lot of railroad ties and placed a red dot on each but left the ties in the possession of the parties from whom he purchased and they were levied upon as the property of the vendor. Our Su
In the present case the court did not take the case from the jury, nor did respondent request the court to do so. The issues were submitted to the jury, both sides joining therein!
The instruction given on the part of the appellant predicated appellant’s right to recover on the alleged purchase of the lumber, wholly ignoring that element of the case arising by virtue of the statute above quoted, whether or not the sale was accompanied by delivery in a reasonable time, regard being had to the situation of the property and whether the change of ownership was accompained by an actual, open, notorious and unequivocal change of possession in a reasonable time as required by the statute. The instructions on the part of appellant were more favorable than the case merited. The instruction given on behalf of the respondent, of which appellant complains, was, in our opinion, more favorable to the appellant than the law warranted and he cannot complain thereof. It told the jury that the mere measuring of lumber does not constitute possession, unless accompanied by other acts sufficient to constitute possession, due regard being had, etc. The court might also have added that the law required the taking of actual, open, notoi'ious and unequivocal possession of the lumber within a reasonable time by placing the usual marks andwcMcmof owership upon the lumber, if the situation of the property was such that it would not be removed from the millyard, or other manual possession taken thereof in a reasonable time. This would not havé aided appellant, however, as all of the testimony showed that no marks or brands were placed on the lumber and that nothing had been done indicating a change of ownership. The instruction given was faulty, in that it failed to tell the jury that it was appellants duty to take actual, open and notorious possession of the property within a
The judgment is affirmed.
