200 Mo. 647 | Mo. | 1906
This is an action of replevin brought in the circuit court of Pemiscot county, Missouri, on the 19th day of September, 1902, to recover possession of certain lumber alleged to have been wrongfully detained by the defendant. The property was seized by the sheriff under a writ of replevin, and the plaintiff gave bond for the same, and said property was delivered to the plaintiff, in whose possession it was at the time of the trial.
The answer of the defendant was a general denial, and an affirmative allegation that the property sued for was owned by the defendant, and there was a prayer for judgment for damages, for the wrongful taking thereof by the plaintiff, in the sum of $2,500. There was a verdict and judgment for the plaintiff.
The evidence established that on the 25th of January, 1902, the plaintiff Strother entered into a contract with the defendant, the McMullen Lumber Company, by which Strother sold and agreed to deliver to the defendant the out-put, during the year 1902, of the oak and ash lumber of the “Michaels” or “Lower” mill owned by Strother, the lumber to be delivered to the defendant at the lumber yard (leased to the defendant by Strother and) adjacent to the mill.' The contract provided that “said lumber shall be delivered to the second party [McMullen Lumber Company] on the lumber yard of the second party hereinafter designated. ’ ’ Among other stipulations the contract contained
On the 21st day of April, 1902, the plaintiff Strother made another contract containing the same stipulations as above recited for the sale of the out-put of oak, ash and cotton-wood lumber of and from the saw mill of plaintiff known as the “Eagle Lake Mill” between the first day of June, 1902, and the first day of June, 1903.
The testimony shows that the lumber in dispute was sawed and delivered under the contracts above referred to and the same was put, stacked and piled on the leased land adjacent to the mill of the plaintiff. It was conceded by both parties that all the lumber sawed and delivered by plaintiff to the defendant prior to August 1,1902, was paid for by the defendant. On the part of the plaintiff the testimony tended to show that all of the lumber replevied was sawed after August 1, 1902, while the defendant claims that part of the lumber replevied, amounting to twenty-nine stacks and worth about twenty-five hundred dollars, was delivered prior to August 1,1902.
The testimony for the plaintiff tended further to show that by mutual consent the stipulation as to fifteen days was changed to thirty days. On or about the first of September, 1902, after the delivery of the thirty days including the month of August had become com
Motions for new trial and in arrest were filed, heard and overruled, and the defendant appealed.
I. The basic proposition in this case is whether the title to the lumber in controversy vested in the defendant when the lumber was delivered on the lumber yard leased to the vendee by the vendor near the vendor’s mill, or was dependent upon the payment of the contract price therefor. If the latter, as payment was refused, replevin was maintainable. If we are to look alone at that provision in the contract which stipulates that ‘ ‘ immediately on the delivery of any lumber by the party of the first part (the plaintiff) to the second party (the defendant), or whenever any lumber cut for the-second party by the first party shall be put or placed upon said lumber yard, the title to such lumber shall at once vest in said second party,” unquestionably it should be held that the title had passed when this action was commenced. But it is insisted by the plaintiff that notwithstanding the unconditional language of the above-quoted provision of the contract it must be. read with all other provisions of the contract in order to arrive at a correct construction of what was the real intention of the parties. The defendant accedes to this suggestion; indeed, this rule may be said to have been
In Johnson-Brinkman Co. v. Central Bank, 116 Mo. l. c. 570, this court said: “ As between vendor and purchaser, where the sale of the chattels is a cash sale, the delivery of the thing sold and the payment of the purchase money are concurrent acts, and the former may reclaim his property, if the purchase money be not paid according to the terms of the sale, either in the hands of the vendee, or of a purchaser with or without notice of the terms of the sale and that the purchase money has not been paid, provided the vendor has not waived the cash payment and has been guilty of no laches or such conduct as would estop him from so doing. A cash sale and a sale upon subsequent condition are entirely different. In the first, the payment of the purchase money and delivery of the property are concurrent acts, one and the same transaction, while the latter is a sale and delivery of the thing sold on condition subsequent, subject to be defeated by failure of the purchaser to comply with the terms of the contract of purchase. The former may be avoided by the vendor upon failure by the vendee to pay the purchase money, while the property is in his hands or in the hands of any
In the case of Strauss, Pritz & Co. v. Hirsch & Co., 63 Mo. App. l. c. 102, it was said: ‘ The vesting of the title to the goods in the purchaser -may be made to depend upon his performance of some condition. And if that be the nature of the transaction, a transfer of the possession, before the performance of the condition, does not pass the title. The condition precedent which the purchaser is required to perform before acquiring the title, is the payment of the price. When that condition is express, the title does not pass before the payment o'f the price, although the possession is given the purchaser. [Ridgeway v. Kennedy, 52 Mo. 24; Parmlee v. Catherwood, 36 Mo. 479; Little v. Page, 44 Mo. 412]..... But if the possession is obtained by the buyer with the understanding that the payment of the price must follow immediately, then the delivery is only conditional, and the title does not pass until the price is paid. The ■cases seem to fully establish the principle that, where goods are sold on condition to be performed immediately, and the vendor makes an actual delivery upon the faith that the condition-will be immediately performed, and then comes with reasonable speed and demands performance of the condition and it is refused, no property in the goods passes to the vendee, and the vendor may maintain replevin. ’ ’
It is generally laid down in the books that the passing of title is one of intention, and such intention must be deduced from the contract construed in the light of the circumstances under which it was made, including the nature and character of the business and the subject-matter to which the contract relates. Looking at the two contracts in the light of the foregoing principles, it seems to us that they constitute an executory
The language of the contract is: “All lumber shall be paid for in full by the second party or its assigns according to the above schedule or prices every fifteen days, at which time all lumber sawed and delivered as aforesaid to the second party during the preceding fifteen days, shall be reported by the said McMullen Company’s inspector to their head office in Chicago and paid for by check on some responsible bank in Chicago drawn to order of the party of the first part.” By the very terms of this agreement, the defendant was in no
Having reached the conclusion from the terms of the contracts and the nature and character of the business and the subject-matter of the contracts and the total failure of any agreement for any extension of credit, that the contracts provided for a cash sale, we are confronted with two apparently conflicting provisions in the contracts, to-wit, one providing that the title shall pass to the vendee upon putting or placing of the lumber on the lumber yard, the other that the lumber shall be paid for in cash' upon delivery, and hence that the title did not vest until the payment of the purchase price therefor. Obviously it is our duty, if possible, to so reconcile these apparent conflicting stipulations as to do no injury to either of the parties to the contract, and at the same time not to make contracts for the parties to which they have not agreed. As already said, we think it is clear that the parties intended that the putting or placing of the lumber on the lumber yard should be sufficient to pass the title so far as delivery was concerned, but the other provision of the contracts, to-wit, the payment of the purchase price, still remained a condition precedent to the vesting of the title. That both parties intended that the payment for the lumber was to precede the complete passing of the title, we think is clear when all the provisions of the contract are considered together.' We think the circuit court correctly construed the contracts to provide for a cash sale and for the payment on delivery of the lumber, and as there is no pretense that the plaintiff did not comply with his part of the contract, and it is conceded that the defendant did not pay for the August delivery when demanded by the plaintiff, but
In Bloomer v. Bernstein, L. R. 9 C. P. 588, it was held that “where there is a contract for the sale of goods to be delivered by installments, the price of each installment being payable on delivery, and the buyer does not pay for one installment under such circumstances as to give the seller reasonable ground for believing that he will be unable to pay for the installments to be delivered in future, and that he does not intend to go on with the contract, the seller is, justified in repudiating the contract.” [See, also, Fletcher v. Cole, 23 Vt. 114; Star Glass Co. v. Morey, 108 Mass. 570; Stephenson v. Cady, 117 Mass. 6; Withers v. Reynolds, 2 B. & Ad. 882.]
The case of Creelman Lumber Company v. DeLisle, 107 Mo. App. 615, is not in conflict, we think, with the conclusions which we have reached. The great question considered in that case was whether the acts and things that had been done to the property were sufficient under the contract to constitute delivery so as to pass the title. The Court of Appeals concluded, and we think rightfully, that the buyer had done all with respect to payment that he was required to do, and the evidence tended to show a sufficient delivery to pass the title.
It would serve no good purpose to review each and every authority cited by the learned and industrious counsel for the defendant in support of their position in this case, because a critical examination will show that they nearly or quite all depend upon the language of the contracts in each case. We are satisfied that the conclusion we have reached is in harmony with our own decisions, especially with that of Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558.
II. It is insisted that error was committed in permitting certain witnesses to testify that in their opinion a contract like the one at bar was a cash sale, but inasmuch as the circuit court reached the conclusion that the contract on its face was a contract for a cash sale, this evidence could not have prejudiced the defendant and is no ground for reversing the judgment.
III. It is also insisted that there was no proof of any damages to the plaintiff by the taking or detention of the lumber and so much of the judgment that allowed him five hundred dollars therefor is erroneous. On this point it is sufficient to say that in the respondent’s abstract of the record, duly served upon the appellant, the plaintiff herein distinctly stated that after the verdict and finding of the jury, and before this appeal was taken, or the motion for new trial filed, the plaintiff entered a remittitur of five hundred dollars awarded him as damages by the jury for the detention of said lumber. By section 813, Revised Statutes 1899, it is provided: “And in case the opposite party shall not concur in said abstract of record, he shall specify his objections thereto, in writing, and file the same with