Northwestern State Bank v. Sieberman

PHIDIPS, District Judge, after stating the facts as above, delivered the opinion of the court. It is to be conceded that the contract of April 13, 1905, was execu-tory in its character. While it recites that Peters & Williams Company have sold to Silberman Bros, so many fleeces, or about 50,-000 pounds of wool, the contract further disclosed that several things were thereafter to be done on the part of the vendor in execution of the transaction. The fleeces at that time were on the sheep, and, as the sheep themselves were not sold, it remained for the vendor to sever the fleeces and put the wool in condition for delivery. The vendor was to deliver it at a certain time and place, and the wool was subject to the further condition of being taken from native sheep and in good merchantable order and condition. So that until" these things were done by the vendor, and these conditions were complied with, the contract could not be executed on its part. If the sheep liad died before the fleeces were severed, or if after being severed, and before the wool had been delivered at Hay Springs, it had been destroyed by fire or other means, the loss would have fallen upon the vendor. It is furthermore to he conceded that a sale of personal property to be complete by delivery at a given place, and at a certain price to be paid by the vendee, in the absence of an express contract at a later date, the implication of law is that the payment is to be made in cash at the time and place of delivery. While the title to the property would not pass to the vendee until the purchase money was paid, [812] it was competent for the parties at the tipie for delivery to agree either upon an extension of the time of payment or as to the manner thereof. If, without more, the wool when brought to the station at Hay Springs had been weighed and prepared for shipment, notwithstanding Silberman Bros, had placed upon it letters identifying it as their property, and it had been placed in cars for shipment, such acts, in and of themselves, would not have been sufficient to pass the title to the vendee without payment of the purchase money, and in cash, if the vendor had then and there insisted upon such character of payment. To entitle the plaintiff below to recover in this action, it devolved upon it to show, by satisfactory proofs, that the right of the vendor to exact payment in cash was waived by consenting to some other mode of payment. The evidence shows that the $¾,000 paid as earnest money at the time the contract was executed was bjr check drawn by Taylor on Silberman Bros., without objection; a fact which reasonably led Taylor to expect that a like method of payment would be acceptable when the balance of the purchase money became due. When the wool was brought to the station, and the process of weighing and delivery was complete, Taylor made direct inquiry of Peters as to how he wanted the payment made — whether by draft on Silber-man Bros, or by draft of Taylor’s bank on Omaha, meaning, of course, the correspondent bank of Taylor’s bank at Omaha. That was a clear indication that Taylor did not suppose or apprehend that the presence of so large an amount of currency was expected by Peters to be paid over to him. Payment in such amount in actual cash money, as every business man nowadays knows, is quite unusual. If it was the purpose of Peters to demand the currency, the time for him, as an honest man, to say so was when the question was first put to him by Taylor. That would have enabled Taylor to obtain the money from Omaha before the wool was delivered in the cars, as the law under such circumstances would have accorded this reasonable opportunity for obtaining the currency. Not until after the wool was sacked, weighed, and placed in the cars ready for shipment, and after Peters’ nxysterious disappearance and visit to Chadron, where his lawyer resided, did he make demand for the currency, when it was then too late. for Taylor to obtain the currency, even by telegram, by the coming morning; but he said to Peters that the wool would not be shipped until the money came, not later than the morning after the 16th. In view of his misleading statement when first asked as to the manner of payment, the law would accord to Taylor a reasonable time after demand for the currency in which to produce it. The foregoing statement of facts is predicated .of the evidence developed by the testimony on behalf of the defendant in error, for the reason that in its charge to the jury the court sharply presented the questions of fact on the contradictory statements of the respective witnesses to the determination of the jury, and their verdict authorizes the presumption that they credited the testimony of the witnesses on behalf of the defendant in error and discredited the version given by the witness Peters; the jury doubtless believing that his whole conduct, in demanding the currency was influenced by the rise in the mar [813] ket value of the wool, and after he had taken advice as to how he could evade the contract. It is also to be assumed, from the charge of the court, that the jury-found the fact to be that after Peters consented that the payment could be made by check, as indicated, the wool was stamped with Silberman Bros.’ brand, loaded into the car, and the car closed by-Taylor; that the delivery was complete; that all that then remained to be done by Taylor was to tender the check or draft; and that a demand for the currency would not reinvest the property in the wool either in Peters & Williams Company or their vendee — the evidence further showing that Peters put himself out of the way so that-he could not be found to make tender of the money immediately when it did come, but it was made to him as soon as he could be found. That the physical possession of the wool was in the railroad company is not disputable, and, as Taylor had directed the agent of the railroad company not to give up the wool, the action of replevin was properly brought against the railroad company and Taylor to recover the possession, if the bank was entitled to the wool. There having been no service of summons in the replevin suit on Silberman Bros., they did not enter appearance in the cause. Although the record shows that they sought to remove the cause from the state court to the United States Circuit Court, that was not an appearance to the merits. Wabash Western Railway Company v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431. Counsel for plaintiff in error presents two principal contentions: (1) That, as Taylor was the agent acting for and on behalf of Silber-man Bros., they are bound by the proceedings in replevin; and (2) that after personal property has thus been replevied the party defendant to such action cannot maintain an action in trover for the wrongful conversion of such property against the plaintiff therein. The Supreme Court of Massachusetts, in White v. Dolliver, 113 Mass. 400, 18 Am. Rep. 502, after review of the authorities of that court, and discussion of the reason of the law, held that one whose property has been taken under writ of replevin in a suit against his agent or bailee can retake it from the party plaintiff, to whom it is delivered, even during the pendency of that action. This ruling has been approved in Westbay v. Milligan, 74 Mo. App. 179; Coen v. Watkins, 62 Mo. App. 502, 505. Cobbey, in his work on Replevin (2d Ed.) § 1233, states the law as follows: “One -whose property has been replevied by a writ against his agent or his bailee can retake it by replevin from the plaintiff in the first action, even during the pendency of that action. One who is a stranger to a replevin suit, and claims the property, may bring replevin against any one except the officer serving the writ. While the property is in his possession it is in custodia legis and is no-t repleviable. Where personal property is in the hands of the plaintiff in an action of claim and delivery, a third person who claims it 'is not obliged to intervene, but may institute another action of claim and delivery for the property.” These authorities stand to recognized principles of law. As Silber-man Bros, were not in fact brought before -the court in the replevin suit, no judgment therein could be rendered against them; nor could a judgment therein against Taylor be regarded as res adjudicata as [814] to Silberman Bros. The settled rule is that, to make a judgment .conclusive against a person not named as a party thereto, it must appear that he sustained mutual or successive relationship to the same right of property or subject-matter, such as a personal representative, heir, devisee, legatee, assignee, voluntary grantee, judgment creditor, or purchaser with notice of the fact. Henry v. Woods, 77 Mo. 877. Greenleaf on Evidence, vol. 1, § 583, says: “No man ought to be bound by proceedings to which he was a stranger. * * * Under the term ‘parties,’ in this connection, the law includes all who are directly interested in the subject-matter, and had a right to make defense, or to control the proceedings, and to appeal from the judgment. This right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause.” No one is a privy to a judgment whose succession to the rights of property thereby affected occurred previous to the institution of the suit. Freeman on Judgments, par. 168. In Butterick v. Holden, 8 Cush. (Mass.) 833, it was held that, where H contracted to sell land to A, and in wrong of A afterwards conveyed to B, although A had sued H and B in equity for specific performance and failed, yet this judgment wa.s no bar to an action iii favor of A against H for breach of contract. In the equity suit, the whole subject-matter of the contract, the consideration, and breach thereof, were gone into and examined, and the court dismissed the bill. Shaw, C. J., said it was a suit between others. “A judgment for the defendant in that suit does not tend to negative defendant’s breach of contract, on which this action at law is brought.” The action against Taylor was wholly possessory. The only recovery the bank could have against him would be for the possession of the property, or the value thereof if the possession were in Taylor at the time of the rendition of the judgment. Silberman Bros, had no right to control or direct the defense in that action. They had no right to except to any evidence that might be adduced, or to any ruling of the court, on the trial of that cause. They would have no right to have ány judgment rendered therein reviewed. They are not claiming any right or title through or under Taylor. Their right to the property occurred previous to the institution of the re-plevin suit, and prior to the purchase by the bank. The bank took their property and converted it to its use. It destroyed its identity so that they could not follow and recover it in kind against the bank’s assignee. The underlying foundation of the rule, asserted by the learned counsel for plaintiff in error, which forbids a third person from maintaining the action of replevin or of trover for property taken under writ of replevin, rests upon the sense of legal propriety, that the property being in custodia legis, held by the officer subject to the order of the court, to be surrendered to the rightful claimant in the action, courts will not tolerate the attempted interception of such property in the custody of the law, or to obstruct the function of the court in surrendering it to one or the other of the litigants before it. In Sanborn v. Leavitt, 43 N. H. 473, the court said: [815] “The writ of replevin requires the sheriff to take the property, not as in an attachment, for the purpose of retaining it, but for the sole purpose of forthwith delivering it to the plaintiff in replevin, who, by the very nature of the process, claims it as his own. When the property has been so delivered, it may be replevied at the suit of another claimant against the paiiy, since he holds this as he does any other property. But the law could not countenance so absurd a thing as to give to every party who claims the property the right to interfere and prevent the officer from doing what it is the purx>ose of the writ of replevin to require him to do. The property, while it is passing through the hands of tho officer, is in the possession of the law, and the law' could not be so Inconsistent as to Issue to Its officers, compelled to act at then-peril, commands wholly incompatible with each other.” This is aptly illustrated in Donohoe v. McAleer, 37 Mo. 312, where the plaintiff in replevin, after delivery of the property to him by the sheriff, sold and transferred it to a third person. The defendant in his answer set up this fact in abatement of the suit. Wagner, Judge, said: “When he (the plaintiff) had so reduced it to possession, he had a right to exorcise all rights of ownership over it, including its sale and transfer, without impairing any right in the prosecution of his action. Had he been defeated in his suit after he had parted with the property, the defendant would have been entitled to the full value. As it was, the plaintiff ought to have recovered damages for the illegal detention.” Accordingly, in Coen v. Watkins, supra, it was held that, after the property uuder the delivery order had been turned over by the sheriff to the plaintiff, it became subject to the claim of a third person asserting title thereto. Under the charge of the court, the jury presumptively found that Silberman .Bros, were the owners of the woo’ wLkm the bank instituted the replevin proceedings. Having thercuíh i disposed of the property, and converted the. proceeds to its use, it. became liable in this action to Silberman Bros, for the value, of the property at the time of the conversion. The judgment of the Cf ouit Court is affirmed.