Wright v. McCormick , 67 Mo. 426 ( 1878 )

Hough, J.

This was an action brought by the plaintiff, under the statute relating to the claim and delivery of personal property, against the sheriff of Pettis county, to recover certain property seized by him on the 30th day of October, 1874, under a writ of attachment against Charles A. Doherty, a dealer in cigars and tobacco, in Sedalia. The plaintiff claimed title under a sale of said goods made to him by said Doherty on the 28th day of October, 1874, and the validity of this sale, as against the attaching creditor, is the question presented for determination. It appears from the record that Doherty, who was indebted and in failing circumstances, wrote to the plaintiff, Wright, who was one of his creditors, and resided in St. Louis, that he had been sued, that he wished to secure his deb+, amounting to $490, and that he had better employ Snoddy & Bridges to attend to the matter. Wright at once directed Snoddy & Bridges to secure his debt, and in doing so to act according to their best judgment. Doherty kept two establishments in Sedalia, a store in the Porter block, on Ohio street, and a cigar stand in the Ilgen house. David Sprecher was clerk in one, and his brother, Nev ton Sprecher, was clerk in the other. On the 28th day of October, 1874, in consideration of the debt due by him to the plaintiff, Doherty executed to the plaintiff a bill of sale of the stock on hand, in both establishments, and delivered the same to Bridges. At the same time one of the keys to the store on Ohio street was banded by Doherty to Bridges, the other being retained by the clerk, and both clerks were informed by Bridges, in the presence of Doherty, that he had bought the goods in both places of business, and they were instructed to account to him for all sales thereafter made by them, and not to permit Doherty to have any further control over the goods. Both places of business were kept open, and sales made thereat as usual, after the execution of the bill of sale, and the same sign, “ C. H. Doherty, dealer in cigars and tobacco,” was kept up at the store, which had been there for- months prior to the sale. Nor was there any change made at the cigar stand to indicate a change of ownership. After the sale and before the attachment, Doherty was frequently at the store, and occasionally made sales of the goods therein, hut, as appears from the testimony of Bridges, without his knowledge or consent. Newton Sprecher testified that he was paid by Doherty for his services at the cigar stand, up to the morning of the attachment. The court refused all the instructions asked by the defendaut, and of its own motion-gave the following :

1. That if it appear from the evidence that at the time of the alleged sale from Doherty to plaintiff-, Doherty had the control or was in possession of the goods sold, the plaintiff cannot recover in this action, unless the court, sitting as a jury, is satisfied from the evidence that the sale was in good faith and for a valuable consideration, and accompanied by a delivery of the goods so sold in a reasonable time, (regard being had to the situation of the property,) and such sale and delivery was followed by an actual and continued change of the possession of the thing sold.

2.- It is necessary to the validity of the sale from Doherty to plaintiff that the change of the possession of the thing sold, as required by the first instruction above, from Doherty to plaintiff, should have been actual, exclusive, visible and continuous up to and at the time of the levy of the attachment; and if the court, sitting as a jury, believes from the evidence that, the plaintiff did not, in good faith, purchase said goods, or that there was no actual, continued and visible change of possession and control of said goods sold, prior to levy thereon of the defendant, the finding must be for the defendant.

3. If the court, sitting as a jury, believes from the evidence, that prior to the levy by defendant on the goods sold, the plaintiff’, by his agent, Bridges, in the presence of Doherty, or with his assent and concurrence, notified and informed the Spreehers, who had before and up to that time been agents and clerks of said Doherty, that he had bought said goods and that they were to act for plaintiff in any further charge or dealing with said goods, arid that Doherty was to have no further control of, and nothing further to do with, the goods sold, and further believethat, with the plaintiff’s assent, Doherty had nothing further to do with the goods or with 'the posession or control of the same, then in such case there was such change of possession as is contemplated by instructions 1 and 2 above.

The court found for the plaintiff, and the defendant has appealed. It has been repeatedly held by this coirrt that the actual and continued change of possession contemplated by the statute in relation to fraudulent conveyances, must be open, notorious and unequivocal, such as to apprise the community or those 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. Claflin v. Rosenberg, 42 Mo. 439; Bishop v. O'Connell 56 Mo. 158. In Lesem v. Herriford, 44 Mo. 325, it was said that the statute requires “ such a change as to preclude the hazard of the seller deriving a false credit from the continuance of his apparent ownership.” The third instruction given by the court is not in harmony with these decisions, and while the facts stated in that instruction might constitute a true test of title as between the parties to the transaction, they are of themselves, insufficient to notify the community at large, or the regular customers even of the vendor, that there had been a change of ownership. The retention of the old sign, which fact is undisputed, amounted to a declaration to the public that Doherty was still proprietor of the store, and notwithstanding the facts recited in the instruction, gave to the transaction an equivocal character. The change of possession, as appears from the undisputed facts in the ease, not having been such as the statute requires, should have been declared to be fraudulent as a matter of law. We are of opinion that the judgment should be reversed and the cause remanded.

All concur.

Reversed.