Pollard v. Farwell

48 Mo. App. 42, 1892 Mo. App. LEXIS 59

• Court: Missouri Court of Appeals
• Decided: February 8, 1892
• Status: Published

Opinion

Ellison, J.

The only question in this case is whether there was such a change of possession of the stock of merchandise as is contemplated by section 5178, Revised Statutes, 1889. We are of the opinion' that there was. We are bound to so hold unless we are ready to announce that there can be no change of possession where the vendor is left in charge of the property. That there was a change of possession as between the parties, cannot be disputed. But to make the change sufficient under the statute, as against creditors the change must be open, notorious and unequivocal. The things which the parties did in this case were those which in themselves would tend to make the transaction notorious and unequivocal. They were means well adapted to that end, and the case concedes that it was notorious. The chief matters relied upon by plaintiff are that, though the store was closed during the negotiations of sale between the interpleader and her vendor, yet, when it was opened, the vendor remained in the store as a salesman, and that the sign painted on the house was not changed. The law having been otherwise complied with, these matters ought not to avoid the sale especially as the fact was that interpleader was negotiating for a clerk and had one engaged at the time the attachment was levied, and it further appearing that she was also negotiating for a different storeroom in which to remove the stock. We have not deemed it necessary to cite authorities supporting our conclusion since the principle governing such cases has-been well understood since the case of Claflin v. Rosenberg, 42 Mo. 439.

The judgment is affirmed.

All concur.