Davis, Mallory & Co. v. Meyer & Co.

Smith, J. Frank Tomlinson, a merchant of Pine Bluff, was indebted to both of the parties to this action. On the 20th 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, repláced 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 them the loss if the goods had been desti'oyed 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 actual delivery ; a visible and substantial change in the possession. These goods were not ponderous, nor bulky, but could have been easily delivered. 2 Schouler's Personal Property, secs. 270, 395; Ferguson v. Northern Bank of Ky., 14 Bush., 555. 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. Dempsey v. Gardner, 127 Mass. 381; McKee v. Garcelon, 60 Me., 165; Solomons v. Chesley, 58 N. H., 238. The only circumstances 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. Forrestall, 58 N. H., 114; Allen v. Carr, 85 Ill., 388; Veazie v. Somerby, 5 Allen, 280; Garman v. Cooper, 72 Pa. St., 32. Reversed and remanded for further proceedings.