Davis v. Meyer

Davis v. Meyer, 1 S.W. 95 (Ark., 1886)

Action for conversion of goods claimed by appellants under a chattel mortgage, and claimed by appellees under a prior purchase from the mortgagor. Judgment for plaintiffs, and appeal therefrom by defendants.

Frank Tomlinson, a merchant of Pine Bluff, was indebted to both parties to this action. On the twentieth of October, 1883, he sold to Gabe Meyer & Co. a bill of merchandise, amounting to $140.15, and consisting of dry goods, tobacco, and two guns. The dry goods, which were of the value of $101.77, were packed in a box, and placed under the counter. The tobacco and guns were not separated from the rest of Tomlinson's stock. No money was paid, it being understood that the amount of the bill was to go as a credit on the debt due the purchasers, and the items were charged on the debtor's books, Meyer & Co. being furnished with a bill of parcels. Tomlinson was directed to send the goods to a certain warehouse in the town. Afterwards, on the same day, and before the goods were removed from the store, Tomlinson executed a mortgage upon the entire stock of merchandise in his store to Davis, Mallory & Co. as security for the debt he owed them, and placed them in immediate possession. They had no knowledge of the previous sale to Meyer & Co., and, when informed of it, refused to recognize the transaction, or surrender the goods to Meyer & Co., but took the goods out of the box, which had never been nailed up or closed in any manner, replaced them upon the shelves among the general stock, and sold them under their mortgage. Meyer & Co. now brought suit for the conversion of the goods; and upon a trial without a jury the circuit court held that they were entitled to recover the value of the goods that had been separated from the remainder of the stock, but not the value of the tobacco and guns, and gave judgment accordingly. Davis, Mallory & Co. have appealed.

It is superfluous to inquire whether the effect of this transaction was to transfer to Meyer & Co. the title or property in the goods, as against Tomlinson, so as to enable them to maintain replevin if he had withheld them, or to throw upon him the loss if the goods had been destroyed by fire; for as we understand the law, in order to make the sale effectual against subsequent purchasers or attaching creditors, there must have been an actual delivery,— a visible and substantial change in the possession. These goods were not ponderous nor bulky, but could have been easily delivered. See Ferguson v. Northern Bank of Ky.

We attach no importance to the fact that Tomlinson furnished to Meyer & Co. a bill of parcels. This was like a bill of sale, and insufficient evidence of a completed sale, unless accompanied by actual possession of the things sold. See Dempsey v. Gardner; McKee v. Garcelon; and Solomons v. Chesley. The only circumstance tending, even remotely, to show that Tomlinson had parted with his control of the goods, was that he had segregated a portion of them from the remainder of his stock, had boxed them up, and set them aside. This was evidence of his intention to select and appropriate them to the use of the plaintiffs. But it is not shown that the plaintiffs were even present, in person or by agent, when this was done. The box was not nailed or closed. Neither it nor the goods were marked with the plaintiffs' name or initials. The plaintiffs did not take charge of the package; nor were they to send and get the goods, but Tomlinson was to convey them to the warehouse. The plaintiffs, therefore, had no possession; and, before anything further was done, Tomlinson resold the same goods to the defendants, who had no notice of the prior sale, and who took possession. The defendants thereby obtained the better title. Crawford v. Forristall; Allen v. Carr; Veazie v. Somerby; and Garman v. Cooper.

Reversed, and remanded for further proceedings.

NOTE.

An oral contract of sale, where no part of the price is paid, is invalid, unless the buyer accepts and receives part of the thing sold; a delivery alone by the vendor is not sufficient, but there must be a receipt and acceptance by the vendee, and the acceptance must be voluntary and unconditional. See Jamison v. Simon.

A sale of chattels, where the price is not paid, and the goods are not actually delivered, in the absence of a written contract, is within the statute of frauds, and void as to creditors. See Hickok v. Buell.

But an oral contract may be taken out of the statute by a written admission in a letter to a third person. See Warfield v. Wisconsin Cranberry Co.

Where the contract for the sale of goods is oral, and no part of the price is paid, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee, to pass the title, or make the vendee liable for the price. See Ex parte Parker.

If, after the contract was made, the defendant takes possession of the property, (wood,) and has it repiled, this is sufficient to take it out of the statute of frauds. See Richards v. Burroughs.

And under a statute of Iowa, providing that no evidence of any contract for the sale of personal property is competent when no part of the property is delivered, and no part of the price paid, it was held that a delivery of the goods by the vendor to a common carrier is a delivery to the vendee sufficient to take the contract out of the statute of frauds. See Bullock v. Tschergi.

It is held that to constitute a delivery the goods must be set apart, Galloway v. Weck; Hoffman v. King; Carpenter v. Graham; and Galloway v. Week.

Appropriation of goods is acceptance thereof. See Wellauer v. Fellows.

Where there is a verbal order for several articles, the acceptance of a part of them, though shipped at different times from the others, will make the entire contract valid. See Farmer v. Gray.

Where a part only of the goods sold is separated from the bulk, there is no delivery of any except that part actually separated. See Holmes v. Bailey.

But it has been held that the pointing out of hogs sold, which were then accepted, although permitted to remain among and be fed with other hogs in the same drove, is a valid delivery. See Webster v. Anderson.

It is the fact of delivery under and in pursuance of the agreement of sale, not the time when delivery is made, that the statute of frauds renders essential to the proof of a valid contract. So that a delivery at a future day is sufficient if made in pursuance of the contract; and, upon the same principle, the place of delivery can make no difference. See Somers v. McLaughlin.