Poorman Bros. v. Witman

Opinion by Green, C.: On the 24th day of February, 1888, Poorman Bros., who were doing a milling business at Anthony, sold a car-load of flour to H. G. Gorton, doing business at Norwich, in Kingman county. The flour was shipped upon a written order, of which the following is a copy: “In consideration of this order, it is expressly agreed that the title to these goods shall be and remain in Poorman Bros, until such goods are paid in full; and said Poorman Bros, shall have the right, at apy time they may deem themselves insecure, to retake possession of such part of the goods as may be left in stock; and the purchaser agrees to take a receipt for such returned goods at above prices and pay the balance of invoice in full.” At the time the flour was received, Gorton was involved, and to secure the payment of preexisting debts, he executed mortgages upon all of the goods in his store, including the flour which was undisposed of. The mortgagees took possession of the property, placed an agent in charge of the store, and a few days later sold the entire stock to C. T. Witman, who took immediate possession of the stock pf goods. This was an action in replevin, brought by Poorman Bros., to recover the flour on hand at the time Gorton mortgaged the goods. The plaintiffs alleged in their petition that, by the terms of the contract, Gorton was to receive the flour in his store for the purpose of sale at retail, and when so sold he became indebted to the plaintiffs for the goods actually sold; and any goods remaining on hand in stock in his store were to be the [701] property of the plaintiffs. The court sustained a demurrer to the evidence of the plaintiffs, and instructed the jury to return a verdict for the defendant. It is urged that the court erred in sustaining this demurrer. It is established by the evidence that the flour was shipped from Anthony on the 25th day of February, and some $200 worth sold. A demand was made for the flour unsold on Saturday, the 31st day of March, and a subsequent demand was made the Monday following; but the goods were not found in the building which had been occupied by Gorton, but had been moved three or four doors south, to the defendant’s store. There was no evidence other than the order for the flour as to the terms of the sale. It will be observed that there is nothing in the written contract expressly authorizing the purchaser to sell at retail or in any other way. Poorman Bros, had the right at any time they deemed themselves insecure to retake possession of such part of the goods as might be left in stock. The fair intendment of the parties doubtless was that the flour was to be sold at retail, but there was no evidence to support the allegations of the petition that the goods were to be so sold. Again, the plaintiffs alleged that the flour remaining on hand in stock in the store of the purchaser in Norwich was to be and remain the property of the plaintiffs. There was no evidence to establish the fact that the property replevied was in stock when the demand was made upon the defendant. The plaintiffs in error insist that the order for the flour was a contract reserving title and should be enforced; and cite numerous authorities of this court where such contracts are held to be valid. All of the cases referred to are where certain specific property, such as organ, wagon and fire-proof safe and other articles subject to identification were in dispute. Courts make a distinction between such articles and goods such as are in dispute in this action, when placed in the hands of a person who may keep similar articles for sale, and the buyer is permitted to deal with the property in a way inconsistent with the ownership of the seller, or in any way which [702] would necessarily destroy his lien or right to the property. (Ludden v. Hazen, 31 Barb. 650.) It has been said: “Exceptions to the general rule in regard to contracts reserving title exist where the possession of the purchaser is coupled with the usual indicia of title and authority to sell; or with the apparent power to dispose of the property super-induced by the acts of the vendor; or perhaps, where the conditional sale is made with knowledge to a regular dealer in the article.” (McCombs v. Guild, 9 Lea, 81.) Poorman Bros, placed it within the power of Gorton to dispose of the flour in question; just how, it does not appear from the evidence. They must necessarily have known that he was a dealer in such goods. It does not appear from the evidence that he was restricted to sales by retail. He mortgaged his entire stock of goods for a bona fide indebtedness, and the defendant purchased the same from the mortgagees. We are of the opinion that the demurrer to the evidence was properly sustained; that there was no error in the judgment of the district court, and it should be affirmed. By the Court: It is so ordered. All the Justices concurring.