69 Mo. App. 446 | Mo. Ct. App. | 1897
Plaintiff is an attaching creditor of defendant, and as such caused a levy to be made on certain goods, including, among other things, about seventy sixteen-pound “butts” of Even Change tobacco. The interpleader claimed fifty of the sixteen-pound'“butts” of Even Change tobacco embraced in plaintiff’s levy. On the trial in the circuit court it
The trial judge gave the following instruction:
“The court instructs the jury that from the evidence in this case on behalf of the interpleader it appears that there was no separation of the fifty butts of tobacco sold to the interpleader from the whole mass of tobacco of the same kind in Lewis’ store, the title did not pass to interpleader and the verdict should be for plaintiff.”
Thereupon the jury returned a verdict for plaintiff. A motion for new trial was made by the interpleader, which was sustained by the court “on account of improper instructions given.” From the order granting a new trial, plaintiff appealed.
“Q, How many butts of sixteen-pound Even Change do you think there was in the pile? A. I should judge from looking at it there was sixty-five or seventy of the smaller size, and possibly eight or ten of the other.
“Q. Eight or ten of the thirty-two and sixty-five or seventy of the sixteen-pound butts? A. Yes, sir.
“Q. You don’t know how much “Star” and “Last Out” there was all in one large pile? A. Yes, sir; stacked up.
“Q. What was done with the tobacco while you were in the store? A. There was not anything done.
"Q. When you left it, was it in the same condition? A. Yes, sir.
“ Q. Did they mark any particular butts you bought while you were there! A. No, sir.
*450 “Q. You did not buy any particular butts? A. I bought fifty butts of particular tobacco.
"Q. You bought no particular fifty? A. No, sir, no particular fifty.”
It is plain from these admissions that interpleader did not himself know at the time of the alleged sale what particular boxes of tobacco he would acquire by his purchase. It is also evident that the boxes containing each sixteen-pound “butts” of Even Change tobacco might have been so marked with ink or otherwise as to identify each one intended to be sold. Nothing could have been easier than for the parties to have affixed some symbol or mark denoting ownership to the boxes of tobacco proposed to be transferred, and also to have had them, after being thus marked, set apart for-the buyer. Had these steps been taken, the title to the goods thus identified would have passed. As they were not taken, the title did not vest in the interpleader as against the attaching plaintiff. In Kaufmann v. Schilling, 58 Mo. 218, it was held that a tenant who had raised a crop of oats under a contract to give the owner one half thereof for the use of the land, was entitled, where the owner had obtained possession of the entire crop without the consent of the tenant, to replevy one half by measuring that amount out of the whole quantity. Whether the facts in that case did not constitute the parties tenants in common of the oats thereby depriving one of the right to replevy from the other, is immaterial, since the only ground for the ruling there made was that the oats were “not capable of an actual separation by identifying each particle.” In the case at bar each box of tobacco was capable of separation and identification. It is clear, therefore, that the case at bar falls within the rules stated in this opinion, and is not controlled by the doctrine of the case cited, even if the latter could be sup
It is so ordered.