Barnes v. Rawlings

83 Mo. App. 185, 1900 Mo. App. LEXIS 148

• Court: Missouri Court of Appeals
• Decided: February 13, 1900
• Status: Published

Opinions

BOND, J.

This is the second appeal in this case (74 Mo. App. 531). The question involved is the title to a separator, engine, water tank, straw stacker, saw mill, log wagon, valued at $400, -all of which plaintiff replevied from defendant. The defendant’s answer set up title in himself and a third party, and demanded a return of the property. There was a verdict and judgment for defendant, from which plaintiff appealed.

It is insisted that the evidence did not show any sale by plaintiff of the property in dispute, but simply a letting to hire. As to the contract by which plaintiff parted with the property to one Walker, who subsequently sold it to defendant and one Snell, the following is plaintiff’s testimony:

“Q. State to the jury what contract you made with Walker in August, 1894, about the property? A. 'Well, he took hohí'óf it in this way: He was to take this machinery and run it and keep up tbe expenses and allow himself $2 a day and what he made outside of that was to come’to me as payment on the property, and the price set on this machinery was $650 and interest on $450 of it, the machinery to be good to me for my money. That was the contract between me and Walker.

“Q. Well how long had you owned this property at that time? A. I had owned it about four or five years; that is since it fell into my hands. Of course, it was secondhand property when I got hold of it. Three or four owned it before I got hold of it. It fell into my hands by me being on a bad note with a man; that is the way it fell into my hands.

“Q. I will change it then. What conversation did you have with Joe. Eawlings about it? A. I never had any at all; no, sir, a.t that time.

“Q. At any time? A. Well, before I taken possession of the property (by replevin) I went to Mr. Eawlings and asked him if he had -bought it and he said he had bought a half interest in it and I asked him what he paid for it, and he said he paid $335, and then I asked him if he did not know that Walker had not paid me and he said no he did not know it until after he had bought it, and then I asked him if he remembered the conversation between me and him had out at the barn; we was close by the bam; that was in the spring or winter, but I do not remember just the time, when he had asked me if Walker had paid me and I told him he had not, and he up and says: I did ask Walker if the thing was clear and he said Walker asked him what he meant, -and he said: I mean have you paid Barnes, and he says: No, I have not, and he says: I did not want to give myself any trouble about it and Walker says: I will stand, between you and Mr. Barnes. That was the words that passed. Mr. Crump was present at the time.”

And further: “I have been paid $31 by Walker.”

On cross-examination Barnes testified further: ‘I sold this property to Walker in 1894, and at that time it was worth $650, and it was worth at the time I took it back in the writ, about $75 or $100 less. Rawlings told me that he paid $335 for half interest.”

The fair legal intendment of the foregoing testimony is, that Barnes sold the property to Walker in the first instance for a price to be paid in installments, with an understanding with Walker that the “machinery” should “stand good” for the deferred payments.’ There is nothing in plaintiffs testimony which shows that he reserved the title to the property in himself until the full payment of the purchase price. But if such a deduction could be drawn, still the foregoing testimony wholly fails to show that the defendant, who was a subsequent purchaser, knew that his vendor had agreed that the original vendor might retain the title to the property in question. All that plaintiffs testimony shows on this point is that defendant was informed by his vendor (Walker) that he, Walker, had not fully paid for the property which he sold to defendant. M&re notice of this fact was not sufficient to charge defendant with any equities between Walker and the original vendor, for the reason that defendant might well have understood consistently with this information that Walker had bought the property on a credit, and that it was not charged in any way with payment of the price which Walker had agreed to give, but that he as such owner had a good right to transfer the title. This being the extent which the evidence showed the defendant was informed as to the previous dealings of his vendor with the property in question, and there being no record of any agreement between the former owners of the retention of title to the property or a mortgage thereof to secure the purchase price, it is clear thai defendant took it free from any such incumbrance. R. S. 1899, see. 3412. The trial court did not therefore err in its conclusion that under the evidence on the present trial the purchase 'of the property by the present defendant did not subject him to the equities which plaintiff might have enforced against the first buyer.

The judgment in this case is therefore affirmed.

Judge Bland concurs; Judge Biggs dissents,