Cozine v. Kennedy

6 Ky. Op. 706, 1873 Ky. LEXIS 358

• Court: Court of Appeals of Kentucky
• Decided: June 5, 1873
• Status: Published

Opinions

Opinion by

Judge Pryor:

There is no doubt from the evidence as to the identity of the machines upon which appellee’s attachment was levied. They were from’ the house of Stoll, Barrows & Co., of Cincinnati, and were consigned to Cozine & Brother at Memphis. This property was in transit when it was attached and there is no pretense that it was ever paid for by the consignees. No lien is asserted, it is true, for the purchase price for the reason that the consignees had never purchased the machines, but were to sell them only as the agents of the owners. Houston and McCallister both show conclusively that Cozine & Brother were the agents of the claimants in selling these machines and exhibit the contract by which this agency was cre-ated1. The fact that Cozine & Brother failed to execute bond with surety as provided by the terms, instead of evidencing the fact that the machines were sold to them, conduces to show that the owners, Stoll, Barrows & Co., were not even disposed to rely upon their promises as agents without indemnity, and if surety was required of them as agents, it is to be presumed that they would have demanded surety when making an absolute sale. That Cozine & Brother had been buying machines of these claimants up to the time this contract of agency was made, and that Stoll, Barrows & Co. about that time ceased to do business as a firm¡ are not such circumstances as should be held sufficient to. overthrow the positive statements of Houston and McCallister as to the property in the machines and the contract between the parties. Houston, as the agent of the claimants, went from Cincinnati to Memphis and made the contract with Cozine & Brother and there is no reason to doubt his statements with reference to it. It is true that Stoll, Barrows & Co. transferred or placed their stock in Cincinnati in the possession of the Field & Lyon Company and perhaps sold it to them about the time this contract was made; still this did not pass the title to these machines then in transitu to' Memphis. That they instituted proceedings in the firm name was not made an objection in the court below and can not be taken advantage of in this court. The petition of the claimants alleges that they were selling as the agents of the Field & Lyon Company, but that the machines in controversy were the sole property of the petitioners. There is no doubt from' the pleadings and proof that the machines belonged to the claimants and it was error in the court below to1 have subjected them' or the proceeds to the payment of appellee’s debt. The judgment of the court below is reversed and cause remanded for further proceedings consistent with this opinion.

June 26, 1873. Allen, J. S. Butler, for appellants. Clemmons & Willis, for appellee.

Cozine & Brother by their appeal insist that the notes sued on were embraced in another judgment theretofore rendered between the parties ; if so, that judgment has not been satisfied, and we can not decide from the facts in the present record that this previous judgment embraced the notes in controversy. The judgment as to Cozine & Brother on this branch of the case is affirmed.