Bass v. Abeles

NIXON, P. J. This transaction concerns a sale of property such as is not usually accompanied by actual delivery of possession at the time of sale and on which the statute has alloAved a reasonable time for delivery. [278] Section 3410 of the Revised Statutes provides: “Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property, . . . shall be held to be fraudulent and void, as against . . . subsequent purchasers in good faith.” Although at common law, consent alone was sufficient to constitute a valid sale (Peycke Bros. v. Ahrens, 98 Mo. App. 459, 72 S. W. 151), the statute of fraudulent conveyances now intervenes and requires that the sale’ must be accompanied by delivery in a reasonable time. The sale and delivery may not be contemporaneous. Although a sale in good faith may not have been accompanied by delivery, it is valid until the expiration of a reasonable time for such delivery; but it becomes fraudulent and void as to subsequent bona fide purchasers after a reasonable time for delivery. [Kendall Boot and Shoe Co. v. Bain, 46 Mo. App. 595; Dillin v. Kincaid, 70 Mo. App. 674.] The appellant offered instructions at the trial on the theory that delivery must accompany the sale, and that if delivery did not accompany the sale, such sale would be void as to him. The purchase price of the property in this case was less than thirty dollars. The law in this State on this question has been long established, and the terms of the statute itself are so plain as to need little comment or interpretation. The authorities, numerous and consistent, are to the effect •that under circumstances such as presented in this ■case, the question of what is a reasonable time for effecting a change of possession is a mixed, question of law and fact and to be submitted to the jury under proper instructions. The evidence in this case, being controverted, it was for the jury to pass upon the facts and determine the question of what was a reasonable time after the sale for the delivery of the ties. The property in question was railroad ties, made some four [279] or five miles from the railroad. They required uo attention after they were made, would not depreciate in value except by long exposure, were in no way an impediment to the business of the seller, and their remaining at the place where made could not in any way injure or interfere with the rights of other parties; and the question of reasonableness was properly left to the jury, chosen from the neighborhood who were peculiarly well qualified to pass upon the question and determine by all the circumstances, usages and customs of the business, the conditions of the roads and the distance from market, whether a reasonable time had expired for delivery. The appellant had one trial in the justice of the peace court, a domestic tribunal, in which justice was untrammeled by any of the technicalities of the civil code of procedure. The-respondent obtained judgment before that tribunal. Upon appeal, another trial was had and the same result was reached. . No serious objection is made to the instructions given by the court. They substantially declare well-established legal principles as applicable to the facts of this case. We find no substantial error in the record, and the judgment, being for the right party, is affirmed. All concur.