69 Mo. App. 463 | Mo. Ct. App. | 1897
The plaintiff sued the defendant by attachment before a justice of the peace, and the constable levied upon a portion of a stock of goods as the property of Lewis. Ashton claimed to be the owner of the property attached and he filed an interplea under the statute denying that Lewis had any interest therein. On the trial of the interplea before the justice the finding and judgment were,, for Ashton, and the plaintiff took an appeal to the Louisiana court of common pleas. On the trial in the latter court the interpleader introduced evidence which tended to prove that the goods in question were a portion of a stock of groceries which formerly belonged to Lewis; that on the evening of the thirtieth of January, 1896, the interpleader purchased the entire stock from. Lewis, upon the terms stated in bill of sale of that date; that the invoice of the. goods was taken on the thirty-first and possession given on the evening of that day, and that on the evening of the next day, to wit, February 1, the constable made the levy. The interpleader read in evidence the bill of sale referred to, which is as follows:
“For and in consideration of the premises hereinafter stated, I, A. C. Lewis, of the city of Louisiana, Mo., have this, the thirtieth day of January, 1896, bargained, sold and transferred to George Ashton, of St. Louis, Mo., my entire stock of groceries, goods, wares and merchandise, together with all fixtures and appliances therewith connected now in my storeroom, No. 413 Georgia street, between 4th and 5th streets in said city of Louisiana, also one team (two horses and wagon) used for delivery team. The said George Ashton on his part agrees and hereby promises to pay*467 said Lewis seventy-five (75) per cent of the invoice market price of said' goods, wares, merchandise and fixtures, less such deduction, to be mutually agreed upon between Lewis and Ashton, as may be made upon damaged or unmarketable goods or upon goods. in excess of quantity usually proportionate to similar stock of goods. For said stock of goods, wares, merchandise and fixtures and team, the said Ashton to pay to said Lewis on the valuation thereof, to be determined as above, five hundred (500) dollars cash and assume all the indebtedness of said Lewis to, Bauer Grocery Co., of St. Louis, Mo., and the balance to. be paid in monthly installments of two hundred (200) dollars per month, for which said Ashton is to execute his negotiable promissory notes for each of said monthly installments, to bear six per cent interest per annum. Said Lewis is to pay all taxes due and legally assessed against said property.
“All coupon books issued in the name of A. C. Lewis and taken up by said Ashton shall be accepted by said Lewis as a payment on the indebtedness of Ashton to Lewis at their face value less 2 1-2 per cent. Said Lewis also hereby leases to said Ashton for the term of one year with the privilege of three (3) years, the aforesaid storeroom, No. 413 Georgia street, at the rate-and rental of thirty (30) dollars per month, to be paid monthly.
“Witness our signatures this 30th day of January, 1896.
“A. C. Lewis.
“Geo. Ashton.”
The evidence for the interpleader was also to the effect that on the thirty-first of January he made the cash payment mentioned in the bill of sale. The interpleader offered proof to the effect that the price at which the goods were purchased, was fair and reason
Our opinion is that the trial court committed error in giving the instruction complained .of, and for this reason its judgment must be reversed and the cause remanded.