Clary v. Tyson

ELLISON, J. — Defendant was indebted to plaintiff in about $300 and the latter brought suit by attachment against-him. The sheriff seized a carload of hogs (then just arrived in St. Joseph) as the property of defendant. The appellant herein filed its interplea claiming the property. The hogs were sold by order of court and the proceeds, amounting to more than plaintiff’s claim against defendant, will be held by the sheriff awaiting the result of . the interplea. The trial court gave a peremptory instruction against interpleader at the conclusion of its evidence, without hearing from plaintiff. Interpleader then appealed. The bank’s cashier was the principal witness and he testified that the interpleader bank and defendant Tyson were of the same town in the State of Nebraska. That it was arranged between the bank and Tyson (who had no money) that the latter should buy stock of the farmers in the surrounding country and give his checks on the hank in payment and that it would honor them when presented. That the stock was to be driven in- and shipped to market, a draft for the amount of the shipment with the bill of lading was to' be delivered to the bank and the latter was to get “two dollars per car for the use of the money.” The stock was so bought and was shipped to Harris & Co., commission men at St. Joseph, defendant delivering the bill of lading to the bank without indorsement. The witness stated that Tyson bought for the bank and seeks to convey the impression that the stock was the property of the bank gathered together by Tyson as an agent. But we refuse to allow that theory. The face of the whole case shows [589] that the stock was Tyson’s. The hank knew nothing of his purchases or his prices and had no interest in the profits or losses, or other interest, save two dollars per car for the use of the money advanced. But the hank hy advancing the money for the purchase of the stock became Tyson’s creditor and had a right to secure itself to the amount of its claim. And it did effectually do so hy receiving the draft and hill of lading from Tyson. The delivery of the bill of lading was a transfer of the property to the bank by way of security although it was not indorsed. Its indorsement was not a necessary thing to the validity of the transfer. Bank v. Homeyer, 45 Mo. 145; Bank v. Railroad, 62 Mo. App. 531; Dymock v. Railroad, 54 Mo. App. 400; Porter on Bills of Lading, secs. 496, 497, 504, 507, 508; Holmes v. Bailey, 92 Pa. St., 57; Hathaway v. Haynes, 124 Mass. 311. The property remained thus pledged to interpleader in the hands of the disinterested consignee at St. Joseph and was therefore superior to plaintiff’s claim as an attaching creditor. Of course, if it can he shown, as is charged, that the arrangement between the hank and Tyson was a fraudulent cover for him whereby he might conceal his-, deals and his property from his creditors, then the hank would losé its right through its guilt in the transaction. But that is a question of fact in which all relevant circumstances may he shown and about'which the parties have the right to the opinion of a. jury. The judgment will be reversed and the cause remanded. All concur.