Association, to be tried in accordance with the views herein expressed.

It is so ordered,

All of this division concur.

Usury is a moral taint wherever it exists, and no subterfuge should be permitted to conceal it from the eyes of the law: Pacific States. Sav. etc. Co. v. Hill, 40 Or. 280, 91 Am. St. Rep. 477, 67 Pac. 103; Falls v. United States Sav. etc. Co., 97 Ala. 417, 38 Am. St. Rep. 194, 13 South. 25. As to the effect of premiums exacted by building and loan associations in excess of the lawful rate of interest, either when taken alone or added to the interest charged, see the monographic notes to Robertson v. Homestead Assn., 69 Am. Dec. 160-162; Bank of Newport v. Cook., 46 Am. St. Rep. 200, 201; and the subsequent case of Washington Investment Assn. v. Stanley, 38 Or. 319, 63 Pac. 489, 84 Am. St. Rep. 793, and authorities cited in the cross-reference note thereto. In Meroney v. Atlanta Bldg. etc. Assn., 116 N. C. 882, 47 Am. St. Rep. 841, 21 S. E. 924, it is held that penalties, premiums, or fines, amounting to more than legal interest, and imposed for the nonpayment of money, are usurious.

The Defense of Usury is not available after foreclosure and when others than the parties to the original contract have in good faith acquired an interest in the property: Ferguson v. Soden, 111 Mo. 208, 33 Am. St. Rep. 512, 19 S. W. 727. See, also, Spinney v. Miller,

114 lowa, 210, 89 Am. St. Rep. 351, 86 N. W. 317.

Courts will not Decide Constitutional Questions when they can per ceive another ground upon which properly to rest their decision: Hart v. Smith, 159 Ind. 182, 95 Am. St. Rep. 280, 64 N. E. 661.

ROSENCRANZ v. SWOFFORD BROTHERS DRY GOODS

COMPANY.

[175 Mo. 518, 75 S. W. 445.]

TROVER AND CONVERSION-Possession of Goods.—If goods have been delivered to a carrier by a shipper to be transported and delivered to himself as consignee, he has the possession of the goods and by virtue thereof has the right to recover them or their value from anyone who seizes them en route except the true owner, and if a third person wrongfully obtains possession of them, he cannot defeat the shipper's action of trover for their value, by showing title in another, without connecting himself with the right of such other. (p. 615.)

ATTACHMENT as Affecting Title. The title of one, in the actual possession of goods is not affected by attachment suits which are not prosecuted to judgment. (p. 616.)

TROVER AND CONVERSION—Attachment-Dismissal.—I? the owner of goods turns them over to another, who has them shipped in his own name by a carrier to himself as consignee, and a creditor of the owner attaches them while in transit, induces the at

Am. St. Rep., Vol. 97-39

taching officer to turn them over to him and then dismisses his attachment, he becomes a trespasser, and has no such legal possession of the goods as is a defense to an action for their conversion by the shipper, although the claim of the latter to them is founded in fraud. (p. 616.)

TROVER AND CONVERSION-Dismissal of AttachmentTrespass-Removal of Goods-Estoppel.-If a creditor of the owner of goods which are in the legal possession of a third person, after attaching them and gaining possession of them from the attaching officer, dismisses his attachment, he becomes a trespasser, and if he then transports the goods to another state, and again attaches them, prosecuting his attachment there to judgment, such judgment is void for want of jurisdiction, and no defense to a suit for conversion by the person entitled to the legal possession of the goods; nor is the latter estopped to question the jurisdiction of the court rendering such judgment, although his claim to the goods is founded in fraud. (p. 617.)

WRONGFUL ATTACHMENT as Defense to Conversion.—A person who has unlawfully and wrongfully obtained the possession of, and attached goods, and afterward sold them, under the judgment of a court which has no jurisdiction, cannot, in a suit for their conversion by one entitled to their legal possession, justify the seizure, possession and sale of the goods on the ground that the claim of the person entitled to their legal possession is founded in fraud of the rights of the former as a creditor. (p. 618.)

TROVER AND CONVERSION-Lien for Freight Charges as Defense. A carrier's lien for freight charges cannot be sold or assigned, and if a creditor of the true owner of goods pays the freight charges thereon and takes an assignment of the carrier's lien, thereby obtaining possession of the goods, such lien is no defense in a suit for the conversion of the goods by one who is entitled to the legal possession thereof. (p. 619.)

ESTOPPEL cannot Exist unless the person who alleges it relied upon some representation of the other, and was induced to act by it, and thus relying and induced did take some action. (p. 622.) TROVER AND CONVERSION-Estoppel to Maintain-Wrongful Attachment.-A statement by the purchaser of goods that he is indebted to a certain creditor in a specified sum, who is willing to carry the indebtedness and not allow it to bother the purchaser or interfere with his paying other creditors, verified by such creditor, after a sale of goods to such purchaser, does not estop such creditor from maintaining an action for the conversion of the goods of the purchaser in his legal possession, wrongfully attached by the creditor making such sale and to whom the statement was made. (p. 622.)

Wollman, Solomon & Cooper, for the appellant.

Ellis, Cook & Ellis, for the respondent.

523 GANTT, P. J. This is an action of trover and conversion to recover the value of thirteen cases and seven bales of dry goods, clothing, etc., and was brought and tried in the Jackson circuit court, and resulted in a verdict for defendant. Plaintiff appeals.

On November 4, 1895, one Herman Goldberg, a merchant of Raton, New Mexico, sold and delivered these goods to the plaintiff, Bertha Rosencranz. Swofford Brothers Dry Goods Company was and is a wholesale clothing house of Kansas City, Missouri. Mrs. Bertha Rosencranz, the plaintiff, is a citizen of Chicago, Illinois, and her husband, a brother in law of Goldberg. Goldberg had been dealing with Swofford Brothers for some time prior to August 24, 1895, and that company had sold him goods on credit, but not in large quantities. On the last-mentioned date Goldberg came to Kansas City to buy a bill of goods of Swofford Brothers and others. On that day he made a statement of his financial standing to Swofford Brothers in which it appears his total assets were $7,550 and his liabilities $2,621. Among his liabilities he scheduled a debt for borrowed money to J. B. Rosencranz for $2,100, and gave as reference J. Rosencranz, 215 Halstead street, Chicago. At the same time he stated that J. Rosencranz was his brother in law, and the debt of $2,100 was the balance of purchase price of original stock bought by Goldberg of Rosencranz, and the latter was willing to carry said indebtedness, and not allow it to bother him in paying his other creditors, and thereupon Swofford Brothers sold him goods to the amount of $1,374.98. On the second day of October, 1895, after the shipment of the goods, the credit man of Swofford Brothers, in the name of said firm, wrote J. Rosencranz the following letter:

he gave

524

"Kansas City, Mo., 10-2-'95. "J. Rosencranz, 215 Van Buren St., Chicago, Ills. "Dear Sir: In a statement rendered us in August last by Mr. Herman Goldberg of Raton, N. M., he us among his liabilities an indebtedness to you of $2,100. He explains to us that you are his brother in law and that this is a balance on the purchase price of the original stock bought from you. He also says that you are willing to carry this indebtedness for him and not allow it to bother him or interfere with his paying his other creditors. His account with us has so far been satisfactory, and if his indebtedness to you does not bother him, he offers a fair risk. We would like to hear from you direct as to the correctness of his statement. We inclose stamped envelope for your reply.

"Yours truly,

"SWOFFORD BROS. DRY GOODS CO." And on October 6, 1895, the following reply was received:

"Chicago, Ill., 10-5-'95.

"Messrs. Swofford Bros., Kansas City, Mo.

"Gentlemen: Yours of recent date was received by me. Replying to same, I will say that the statement made to you in August last by Herman Goldberg of Raton, N. M., regarding the indebtedness to me of $2,100, was correct.

"Yours respectfully,

"B. ROSENCRANZ.” The plaintiff offered evidence that afterward on the third day of November, 1895, the plaintiff through her husband J. Rosencranz, acting as her agent, delivered the goods for whose conversion this action was commenced, to the Atchison, Topeka and Santa Fe Railroad Company, a common carrier engaged in transporting merchandise from Raton, New Mexico, to Chicago, Illinois, and received a bill of lading in her favor in due form, whereby said company agreed to deliver said goods to her in Chicago, Illinois; that Kansas City, Missouri, is on the lineof said railroad between Raton and Chicago. That the defendant, Swofford Brothers, on the 7th day of November, 1895, sued out an attachment for $1,385.80 in the circuit court of Jackson 525 county, Missouri, at Kansas City, in favor of said Swofford Brothers Dry Goods Company and against H. Goldberg, on the ground of nonresidence, and under said writ the said defendant directed the sheriff of Jackson county, Missouri, to attach and take from the possession of the said railroad company, all of the goods described in the petition, and said sheriff, on the eighth day of November, 1895, attached and took said goods out of the possession of said railroad company in Kansas City, Missouri. That afterward, on the ninth day of November, 1895, said Swofford Brothers Dry GoodsCompany dismissed its said attachment suit, and on the 11th of November, 1895, said sheriff released said goods. No other proceedings were had against said goods in Jackson county, Missouri. By direction of the defendant, the sheriff turned the goods over to H. Leftwitch, an employé of defendant, and Joseph H. Roy, an employé of defendant's attorneys.

Prior to the commencement of the suit in Jackson county, Missouri, the Swofford Brothers Dry Goods Company, having learned of their shipment from Raton, brought an action by attachment in Johnson county, Kansas, and summoned the railroad company as garnishee. The sheriff of Johnson county, Kansas, did not succeed in seizing the goods, and it was learned they had gone into Kansas City, Missouri, where,

as already said, they were levied on by the sheriff of Jackson county, Missouri, and removed from the cars.

It seems this seizure aroused the railroad company, and the Swofford Brothers being anxious to avoid controversy with the railroad, which had a lien for its freight charges, it was stipulated that the railroad should receive its earned freight. Thereupon Joseph H. Roy took an assignment from the railroad company of its claim for freight lien on the goods, and the goods were then delivered to Mr. Leftwitch, an employé of defendant, Swofford Brothers, under the 526 direction of their attorneys. After that the suit in Jackson county, Missouri, was dismissed.

Thereupon by direction of Swofford Brothers, or their attorneys, the goods were then placed in wagons and driven. across the state line into Kansas.

The money which was paid by Roy to satisfy the freight bill was paid by Swofford Brothers. When they reached Kansas, Cummins, the deputy sheriff of Wyandotte county, Kansas, under the direction of Swofford Brothers, levied upon the goods. They were marked B. Rosencranz, Chicago, Illinois. This levy was made under a writ of attachment issued by the clerk of Johnson county, Kansas, in the suit commenced there as already noted. It seems no publication was made in this suit within the forty days required by the laws of Kansas, and subsequently this suit, like the one in Jackson county, Missouri, was also dismissed, and no further steps taken in it, but prior to its dismissal and while the goods were still in the hands of the sheriff of Wyandotte county, Kansas, Swofford Brothers Dry Goods Company, the defendant herein, brought still another action in attachment in the common pleas court of Wyandotte county, Kansas, against Goldberg, and by its direction. the sheriff of that county levied upon the same goods then in his hands. Constructive service by publication was then obtained in this last-mentioned case, and judgment taken, and the goods sold, and bought in by defendant. There was no appearance by Goldberg or Mrs. Rosencranz in any of the cases. Thereupon on January 23, 1896, plaintiff brought this her action against Swofford Brothers for conversion. The defendant in its answer pleaded: 1. A general denial; 2. An estoppel on the part of plaintiff, by reason of her agreement not to enforce her debt in preference to Goldberg's other creditors; 3. A lien for the amount of the freight paid by defendant; 4. That the transfer by Goldberg to plaintiff in New Mexico