Parlin Orendorf Co. v. Hord , 78 Mo. App. 279 ( 1899 )

BLAND, P. J.

Plaintiff begun this suit in the circuit court for the recovery of the possession of five Canton Steel Erame Drill Corn Planters, and one complete with check rower attachment, and one Canton Disk Cultivator Plow, all of the alleged and proved value of $187.50. The answer denied the right of plaintiff to the possession of the property, and pleaded specially that G. L. Ferris on the fifth day of August, 1894, was the owner of the' property, and that he on that date by deed of assignment conve/ed the property to defendant for the benefit of his (Ferris’) creditors, and that defendant immediately qualified as such assignee and took into his possession the property, and claims right of possession as such assignee and for damages for its taking and detention by plaintiff. A reply was filed putting in issue the special defense. The cause was tried by the court, a jury being waived. The evidence for plaintiff, briefly stated, was as follows: “L. O. Grunert, on part of plaintiff testified as follows: I am the agent for the plaintiff, and on the seventeenth day of January, 1894, I made a contract with G. L. Eerris for the sale of merchandise to him. The contract is in writing and.is dated January 17, 1894, and is signed by G. L. Eerris and myself, as agent for plaintiff! On this occasion I sold Eerris the property described in the petition; I was here' at the time he made the assignment, and I found this property in the hands of his assignee, P. E. Hord. The value of the property is $187.50.” The contract was introduced in evidence and is as follows: Page two: “All goods on hand and the proceeds of all sales of goods received under this contract, whether the proceeds are in notes, cash or book accounts, we agree to hold the same as collateral security in trust for the benefit of and subject to the order of Parlin & Orendorff Oo. until we have paid in full, in cash, all our obligations due to the said Parlin & Orendorff Oo. We accept the same terms on further orders that we may send you during the season. G. L. Eerris.”

Hnder the head of “remarks” in the contract are the following entries in writing: “All planters unsold to be-carried;” “all disks over twenty-five to be carried by Parlin & Orendorff Oo. not sold this year, amount $1,506.” “In case of the death or the failure of the firm or any member of it in making this order, all accounts and notes for goods bought under this contract shall become immediately due and payable.” The witness ‘Grunert on further examination stated: *

“I never have made a settlement with Eerris; he owes a balance of $1,396.98 on account of the goods sold him; he gave notes for the balance and before he paid them made this assignment; these goods that I replevied from Hord are the goods I sold Eerris.”

On cross-examination the witness stated further:

“The notes given by Ferris were for goods bought by him on previous contract; there were no notes given for goods bought on this contract; he is entitled to a credit for'some castings returned; the whole of the claim against him amounts to $2,290.17; I made a demand on Mr. Hord, the assignee, and he refused to give them up; I therefore brought this suit in replevin for them.”

The plaintiff then introduced in evidence the deed of assignment from Eerris to Hord, and it was admitted that P. E. Hord is the assignee of G. L. Eerris, and at the time of the commencement of this suit was in possession of the property described in the petition, as such assignee.

The evidence for defendant is as follows:

“Parlin & Orendorff Oo., St. Louis, Mo.

“Mexico, Mo., July 17, 1894. — -Please execute the following order for plows and other goods to be delivered in St. Louis, Mo., and marked for G. L. Eerris, ship as soon as possible, for -which-expressly agrees to give-notes, payable with exchange, etc., less discount, or at net prices as herein named. Plows and all other goods, except cultivators and repairs, payable July 1, 1894, unless otherwise specified herein. Plows and all other goods, except cultivators and repairs subject to five per cent discount for cask April 1, 1891, or witbin fifteen days from date of shipment. Cultivators subject to five per cent discount for cash June 1, 1891, or within fifteen days from date of shipment. We agree not to countermand this order, except on payment of twenty per cent of the net amount of the goods hereby purchased of Parlin & Orendorff Oo., as liquidated damages.”

“This contract is not binding unless acceptance is indorsed herein at the St. Louis office, Parlin & Orendorff.

“G. L. Eerris.

“Accepted subject to the approval of Parlin & Orendorff Co.

“L. O. Grunert,

“Traveling Agent.”

Then followed a printed list of the implements for sale by plaintiff, and the number purchased by Eerris.

Under the head of “remarks” in writing appears:

“All planters unsold to be carried.

“All disks over twenty-five to be carried by P. & O. Go. not sold this year.

“All disks E. O. B. Mexico.

“Territory Laddonia and Mexico.

“One tongue for disk gratis.

“$1,106.”

G. L. Eerris testified that plaintiff’s agent called on him on August 3, 1891, and they had a settlement as to how much he owed the house. He gave me credit for some castings they had shipped me and some fixtures for plows; also credits on account for freight I had paid for them to the amount of about $50. On that settlement it showed a balance I owed the house of $1,396.38, after they gave me credit for the goods returned and the freight.”

No instructions were asked or given. At the close of the evidence- the court held that the circuit court had no jurisdiction because tbe value of tbe property involved was below the original jurisdiction conferred on tbe circuit court, and rendered judgment for tbe defendant, whereupon an appeal was taken to tbe supreme court on tbe alleged ground that tbe session acts of 1891 (page 106), amending section 3318, Revised Statutes 1889, is unconstitutional. Tbis constitutional question is raised and discussed in tbe briefs, but it nowhere appears in tbe record, for which reason tbe supreme court held that no constitutional question is involved, and transferred tbe case to tbis court for decision. Tbe act of March 19, 1891, (Sess. Acts, p. 106), and tbe act of April 1, 1891, (Sess Acts 1891, page 107), and their effect on section 3318, supra, and the one upon tbe other, were fully discussed by tbe Kansas City Court of Appeals in Lang v. Calloway, 68 Mo. App. 393. Tbe conclusion therein reached was that tbe circuit courts have concurrent jurisdiction with tbe justices of tbe peace in replevin suits, when tbe value of tbe property and the damages shall exceed the sum of $50, and does not exceed tbe maximum jurisdiction of justices of tbe peace. Tbe construction given tbe two apparently inconsistent acts of 1891 by tbe Kansas City Court of Appeals is in our judgment sound and well supported by tbe authorities cited by Judge Smith who wrote tbe opinion. We therefore bold that tbe circuit court did have jurisdiction of tbe cause of action. Tbe sale of tbe goods by plaintiff to Eerris under tbe terms of tbe contract was conditional, tbe title remaining in plaintiff until tbe goods were paid or settled for; tbis contract was in writing, but was neither acknowledged nor recorded, as required by section 5180, Revised Statutes 1889, and hence was not good as against prior or subsequent creditors with or without notice. Collins v. Wilhoit, 108 Mo. 451; Knapp v. Distilling Company, 102 Mo. 157. But tbe assignee can not assert tbe invalidity of tbe contract as to tbe creditors of tbe assignor, since be took tbe assigned property subject to all liens and contracts that were valid inter parties, it having been made prior to the acts of 1897 (Session Acts of 1897, p. 38). Jacobi v. Jacobi, 101 Mo. 507; Riddle v. Norris, 46 Mo. App. 512; Hughes v. Menefee, 29 Mo. App. 192. It follows that plaintiff should recover, unless the property replevied had been paid or settled for by Ferris. Of this there is no substantial evidence in the record, and we reverse the judgment and remand t'he cause for retrial.

All concur.