Opinion
No. 30677.
June 5, 1933. Suggestion of Error Overruled July 7, 1933.
SALES.
Under contract to deliver steel on steamer f.a.s., title passed to buyer as soon as buyer's agent inspected steel in railroad cars and accepted steel though expense for switching to shipside was to be paid by seller, precluding attachment for stevedoring services for loading steel on cars on theory that title remained in seller so long as steel remained in railroad cars and was not within reach of ship's tackle.
APPEAL from Circuit Court of Harrison County.
Ford, White Morse, of Gulfport, and E.L. Dent, of Collins, for appellant.
Section 3352, Code of 1930, was enacted by the Legislature to make the apparent ownership of the property go with the real ownership and to prevent any interposition of secret claims to property by persons who have permitted others to deal with it as their own, or to hold themselves out to the world as the true owners.
Shannon v. Blum Co., 60 Miss. 828, 831.
The scheme and policy of the statute is to preclude the assertion by others of secret claims to the property of which the trader is the ostensible owner.
Herman Co. v. Robinson et al., 65 Miss. 162.
Where a debtor sells his goods which are afterwards attached as his, and claimed by the purchaser, proof of fraud on the part of the debtor in the sale devolves on the claimant, the duty of showing that he bought in good faith and for value.
Richards v. Vicarro, 67 Miss. 516.
It is for the jury to pass upon and determine the disputed questions of fact and our court has held repeatedly that in the granting of a peremptory instruction by the trial court, that everything must be considered as proved which the evidence establishes either directly, or by reasonable inference against the party who asks the instructions.
In view of all testimony in this case, certainly the question of ownership of the property should have been submitted to the jury.
Meridian Fertilizer Factory v. John Bush, 77 Miss. 697.
We contend that the abbreviation "f.a.s." has a well defined and accepted meaning and is a common sign, abbreviation or symbol used by parties to declare their intentions in making contracts, and it being used twice in this contract, and its use expresses its meaning, plainly, distinctly and perfectly, and while there is no occasion to have recourse to any other means of interpretation, the evidence fully warrants that no delivery of this material f.a.s. Gulfport was made to appellee before the writ of attachment was served, and if Lane made no delivery of this material to appellee f.a.s. Gulfport before the writ of attachment was served, then no title under this contract was ever in the appellee, and the writ of attachment was rightfully served on this property, and it was subject to the indebtedness due by defendant Lane in attachment to appellant.
25 C.J., page 675; 55 C.J., page 334; McGowin Lumber Export Co. v. R.J. B.F. Camp Lumber Co., 68 So. 263; Kokomo Steel Co. v. Republic of France, 268 Fed. 917; Pollard, Pettus Co. v. Vinton (U.S.), 26 L.Ed. 998, 105 U.S. 7.
The character of a transaction is often betrayed by the unusual little things which creep in, which, as pointed out in the leading case on fraudulent conveyances, are the sure badges of that which they are intended to hide.
27 C.J. 489.
The failure of Lane and Turkheimer to produce the correspondence with reference to sale and transfer together with bill of lading is a very strange circumstance showing they were not telling the truth.
27 C.J. 803.
Possession of property real or personal raises the presumption of ownership, constituting prima facie evidence of title and ownership that is good against . . . all the world for every purpose until a superior title is shown.
50 C.J. 786; Meridian Fertilizer Factory v. Bush, 77 Miss. 679.
Retention by the grantor of the possession of the property transferred is a badge of fraud, to be considered in connection with other circumstances of the case in determining the good faith of the conveyance or transfer.
27 C.J. 494.
A contract to sell a portion of goods out of a larger mass is not taken out of the statute by a mere setting apart by the seller of the part sold. There must also be a receipt and acceptance by the buyer of the portion set apart.
Garner v. Broome, 138 So. 336; Entrekin v. Byrd, 149 Miss. 340, 115 So. 562; Borrow Co. v. Planters Oil Mill Co., 138 Miss. 284, 103 So. 9; 27 C.J. 248. Gardner Backstrom, of Gulfport, for appellees.
Neither all of the testimony nor any part thereof shows that Frank Lane dealt with the property as his own, asserted it belonged to him, or held himself out to the world and appellant in particular as the owner thereof, after he delivered the same on board the cars to the appellee in this cause.
The statute, section 3428 of the Code of 1930, places the burden of proof on the plaintiff in attachment, which would certainly mean at least that the plaintiff must first show that the title was vested in the defendant in attachment when the attachment was levied, and, if the plaintiff in attachment relied on fraud in the transfer, it is certainly incumbent on the plaintiff to at least prove the fraud.
The record clearly shows that the appellant proved that title had passed from the defendant prior to the levy of the attachment, which proof is neither denied nor contradicted. Having made this proof, it was necessary for the court to direct a verdict in favor of the claimant, which was rightfully done. The judgment of the lower court should be affirmed.
On July 18, 1931, the appellee Frank Lane, by a written contract agreed to sell and deliver to the appellee claimant one hundred fifty to two hundred fifty tons of steel rails and angle bars then located on the east pier of the harbor of Gulfport. The delivery was to be made f.a.s., and it was recited that the steamer to take said tonnage was expected to arrive late in August. The claimant sold this material in Japan, and a Japanese vessel called at the port of Gulfport for this cargo about the 18th or 19th of August, 1931.
A few days before the arrival of the steamer, appellee Lane contracted with appellant to load said iron on cars of the railroad company, so that the iron by this means could be switched f.a.s. Appellee, the claimant, was notified that the loading on the cars had been promptly finished and an agent and duly authorized officer of the claimant company came to Gulfport on the 20th day of August, 1931, to make an inspection of the iron so loaded; as a result of which he accepted the iron thus loaded on cars as being in accordance with the contract, and having accepted the same, on the same day he notified the forwarding agent of the Japanese shipping owners that the tender under the written contract, as said tender was then evidenced by the material on the loaded cars, had been accepted by the claimant, appellee, and the forwarding agent was instructed to have the iron placed in due course on board the ship.
On the following day, and while the cars which held the iron had been switched within six hundred to one thousand feet of the steamer but were not yet in reach of the ship's tackle, appellant attached all the iron mentioned as the property of appellee Lane, who was a nonresident, and because appellant had good reason to believe and did believe that the appellee Lane was planning to avoid the payment to appellant of the money due appellant for the loading on cars as aforementioned, the sum due appellant being approximately four hundred twenty-five dollars. The theory of appellant's case was and is that title to the iron did not pass out of Lane until it was brought within reach of the ship's tackle, the written contract between Lane and appellant being as aforesaid that delivery was required to be made by Lane f.a.s.
The county court and the circuit court took the view that when the iron was loaded on cars at the harbor and was there inspected and accepted by the claimant and was then by the claimant turned over to the Japanese shipping owners, the title thereupon passed, although the expense of switching to shipside was to be, and was in fact, paid by Lane. In this view of the law, we think the trial judges were correct. The loading on the cars of this iron by the agents of Lane was equivalent to a tender of same as complying with the terms of the contract so far as quality, quantity, and the like were concerned, and the inspection and acceptance by the claimant, the purchaser from Lane, of the iron thus loaded rendered the transfer specifically irrevocable. There was a segregation and identification of the property under the written contract which up to that time was executory, but which upon the inspection and acceptance closed the transaction so far as the actual sale and the passing of title was concerned. True, there still remained the switching to the point f.a.s., but had Lane failed to pay or perform as to this, the remedy of the purchaser from him was not to decline to take the iron then already tendered and accepted, but simply to deduct out of the purchase price the charges for switching f.a.s.
The conclusion thus reached renders it unnecessary to decide the interesting question, so ably argued, whether the judgment in attachment was void.
Affirmed.