Tuttle & Pike v. Bracey-Howard Construction Co. , 136 Mo. App. 309 ( 1909 )

BROADDUS, P. J.

Interplea. The plaintiffs instituted suit against defendant and caused writ of attachment to be issued, under which was seized as property of defendant six spools of copper wire which was found in a warehouse situated in Kansas City. The appellant filed its interplea in the cause claiming ownership of the property attached, and afterwards executed its bond to the sheriff in the sum of $3,024, and obtained possession of the Avife. By agreement the cause was tried before the Hon. Andrew F. Evans as special judge. The judgment was in favor of the plaintiff and the interpleader appealed.

The facts are as follows: During the year 1903 defendant was engaged in the construction of what was knoAvn as the Kansas City & Olathe Electric Railway. On September 4th the B-R Electric & Telephone Mfg. Company, in behalf of defendant, wrote to interpleader at Chicago, where it had an office for the transaction of business, asking for quotation of prices for material. On September 8th interpleader replied, quoting prices. On September 9th the B-R Company telegraphed that the prices were satisfactory if interpleader would take “Acceptance of Bracey-Howard Construction Company, Chicago, ninety days from date.” On September l'Oth interpleader replied that they would accept the terms on the condition that the B-R Company would endorse the acceptance of the defendant. The' B-R Company refused to agree to the arrangement and stated that it was not to be held liable for the wire. The interpleader then required that defendant furnish •a financial statement of its condition. This statement was furnished on the 14th of October, 1903. Previously, the interpleader, on September 17, 1903, wrote the B-R Company that it was willing to furnish the material on defendant’s credit, taking notes and waiving the endorsement of the B-R Company, and asking for an order direct from the defendant, which was furnished on September 24th by B-R Company. On September 26tb the interpleader by letter to defendant acknowledged receipt of the order for the wire which was to bo delivered f. o. b. Trenton, New Jersey, and in settlement thereof agreed to accept defendant’s ninety days’ acceptance to bear six per cent after thirty days. This order was sent from the Chicago office to interpleader’s office at Trenton to be filled. After this, there was much correspondence as to the routing of the materia] and some changes were made in the kind and grade of the material to be furnished. On October 27th interpleader shipped f. o. b. Trenton $11,984.50 worth of wire consigned to defendant at Kansas City. On the 28th another shipment of the value of $4,991.51 was made consigned as the first shipment. On November 19th interpleader sent to defendant at Chicago a monthly statement of account including the two shipments. The vire arrived in Kansas City sometime about the 19th day of November and was stored in a warehouse under the charge and control of defendant. It remained in the warehouse until December 23rd when the six spools mentioned were seized by the sheriff under the writ of attachment issued in this case.

After the shipment of the wire, a difficulty arose between interpleader and defendant with reference to the execution by defendant of the notes to be given for the material, and the further shipment of wire was withheld by interpleader until the matter could be adjusted. The interpleader and defendant by correspondence entered into an agreement by which the wire was to remain in defendant’s warehouse subject to its order, but before interpleader could take possession it was attached as stated. The following stipulation was entered into by the parties at the trial, viz.: “That the wire attached in this case and claimed in the interplea was a part of the wire referred to in the correspondence in evidence and was shipped to Kansas City by the inter-pleader consigned to defendant. That upon its arrival at Kansas City it was taken possession of by James E. Tryon, as engineer of said defendant, Bracey-Howard Construction Company, and was by him stored in a warehouse, where it was attached, which warehouse had been rented by the defendant through its agent, James E. Tryon, and which warehouse was used by the defendant for storing said wire, as well as the tools, implements and other property of defendant.” The defendant in the transaction acted through its president, a Mr. Bracey.

The position of interpleader in the trial court and in this is as follows: That the title to the wire attached never vested in the defendant; and that, if there was a sale of the wire, it was rescinded and the- title thereby revested in the interpleader. The court declared the law to be that there was such a transfer of the possession and right of property in the wire from the interpleader to the defendant as to vest title in the defendant; and that the attempted retransfer of the property to the interpleader by defendant, so far as the plaintiff’s right of attachment was concerned, was' void.

The interpleader insists that there is no evidence going to show that any one with authority upon the part of defendant made the order for the wire. The financial statement made by the defendant upon request of interpleader through the intermediation of the B-R Company goes to show that the latter was acting in the capacity of agent for defendant. And the letter of interpleader of September 26th to defendant acknowledging receipt of the order for the wire made by the B-R Company shows conclusively, in our opinion, that there was a perfect understanding that the latter company had full authority to act for the defendant. The interpleader undoubtedly believed that such was the case and was ind uced thereby to ship the wire. But it is insisted that it was not shown that Mr. Bracey, who purported to act in behalf of defendant, had authority for that purpose. He was president of defendant and as such was its chief officer and, in the absence of any regulation of the defendant company, it will be presumed that he had full authority to act in the premises. The act in question was not one that required the consent or direction of the board of directors of the defendant.

It is claimed that the minds of the parties did not meet and therefore there was no sale. In the face of the testimony, we do not see how this contention can be sustained in vígav of the fact that the order for the wire was made Avith the knowledge of defendant and as such.accepted by interpleader, and the wire shipped as stated. The amount of Avire to be delivered, the price and the terms of payment were all specifically provided for and understood by all parties. The goods were first to be delivered at tbe price stipulated, upon which defendant was to make payment by executing the acceptances. It was a sale on ninety days’ time. The sale itself was complete on delivery of the material f. o. b. Trenton. The title passed upon the shipment of the wire. There was no reservation of title in the inter-pleader until the wire was paid for. The delivery to the carrier as its agent or bailee vested the title in the defendant. [Scharff v. Meyer, 133 Mo. 428; Comstock v. Affoelter, 50 Mo. 411.]

The interpleader contends that whatever arrangement it had Avith the defendant it Avas rescinded before the service of the attachment and that thereby the title Avas revested free from the claim of creditors of defendant. Under the circumstances, there was a sufficient consideration for the rescission, the defendant having failed to make payment as agreed. But, there having been no fraud upon the part of defendant in the purchase of the wire, the transaction must be treated in the light of an ordinary sale unaccompanied by delivery at the time and not in writing, acknowledged and recorded, as provided by section 3410, Revised Statutes 1899. This section has often been construed, and it is held a sale not accompanied by a delivery in a reasonable time, regard being had as to the situation of the property, is void as to creditors. [State ex rel. v. Goetz, 131 Mo. 675; State ex rel. v. Hall, 45 Mo. App. 298.] It was a question of law for the court, under the evidence, to say whether interpleader had taken possession within a reasonable time. The finding, we believe, was proper. It was the duty of defendant to have removed the wire from the possession' of defendant Avith reasonable dispatch after the agreement to rescind. Instead of doing so, it delayed its attempt for about twenty days Avhen its action was anticipated by seizure of the sheriff under the writ of attachment.

Interpleader has called our attention to cases where goods have been obtained by fraud and in which the rule is different; but, as fraud does not enter into this contract, they need not be considered.

Affirmed.

All concur.