24 Mo. App. 134 | Mo. Ct. App. | 1887
The plaintiff sued the defendanf in trover for the conversion of a barrel of whiskey. The answer, after tendering the general issue, pleaded thai prior to the general state election in 1884, the plaintiff made a bet with one Flaisig, to the effect, that plaintiff wagered one hundred dollars against one barrel of whiskey, the property of Flaisig, that Marmaduke would be elected governor of the state; that prior tc
Plaintiff had judgment, from which "defendant has appealed.
I. The appellant presents his case on the theory, first, that this action, in its essence, is to enforce a wagering contract, or to recover from a stakeholder property won on a bet on an election. It is manifest, from the instructions given and refused by the court, that it tried the case on the theory that plaintiff’s cause of action was predicated on a transaction independent of the wagering contract; and which supervened after the performance by the parties.
The evidence, so far as we are able to gather it from the most fragmentary of abstracts furnished this court by the parties, shows that the wager between plaintiff and Flaisig required the plaintiff to put up his check lor one hundred dollars against one barrel of whiskey owned by Flaisig, then in the possession of defendant as agent or bailee of Flaisig. The check and whishej^ were to be placed in the hands of defendant as stakeholder. When the parties went to defendant to make the deposit, the plaintiff asked defendant if Flaisig had the barrel of whiskey with him, particularly described, as hereinafter stated, to which defendant answered that he bad.
Some months after this, when the plaintiff demanded of defendant the whiskey, he refused to deliver itr assigning as a reason that he held the same as collateral security. This was the first time he had mentioned the claim of the pledge.
This state of facts, about which there is no controversy, clearly made out a second bailment, wherein the plaintiff was bailor and the defendant was bailee. Having voluntarily accepted the property as that of the plaintiff, and agreeing to hold it for him, subject to his order, it became obligatory on his part to return the same to plaintiff upon demand, and his refusal amounted in law to an act of conversion. Fulkerson v. Ingles, 17 Mo. App. 232; Smith v. Stephens, 9 Mo. 873; O'Donohoe v. Corby, 22 Mo. 393; Williams v. Wall, 60 Mo. 318.
II. Under such a state of facts, the action is predicated upon the last contract of bailment, and the question of the legality, or illegality of the first arrangement between plaintiff and Flaisig has nothing to do with the controversy. In Armstrong v. Toler (11 Wheat. 258), while the general rule was recognized, that the courts will'not enforce contracts growing immediately out of, or connected with, an illegal act, yet it was held that if the
In recognition, no doubt, of this ruling, it has been held that the test whether a claim connected with an illegal transaction be enforceable at law is whether the plaintiff requires the aid of the forbidden transaction to establish his case. If he can fully develop his cause, without predicating it on the illegal matter, so that it is not in fact and law dependent thereon, the action is maintainable. Dunham v. Scott, 11 Serg. & R. 164; Thomas v. Brady, 10 Barr. 170; Hall v. Green, 73 Penn. St. 198; Tyler v. Larimore, 19 Mo. App. 458; Parsons v. Randolph, 31 Mo. App. 353.
All that was necessary to enable plaintiff to make out the case stated in the petition was to prove the agreement by which Plaisig, the admitted original owner of the whiskey, consented that the defendant should turn the same over to plaintiff, and the defendant’s assent to hold the same subject to plaintiff’s order, the demand and refusal to return to plaintiff. This case is little distinguishable in principle from that of Gowan, Adm'r, v. Gowan (30 Mo. 472), in which it was held that where a debtor deposits personal property in the hands of another as bailee for the purpose of fraudulently screening it from his creditors, the bailee cannot avail himself of the fraudulent intent of the depositor, to defeat an action brought against him by the bailor for the recovery of such property. Napton, J., in delivering the opinion of the court, very appositely observed : “ The plaintiff simply asks that the bailment may be enforced ; that as he put the property in the defendant’s hands, subject to his order, he shall now have it again when demanded. No document or fact is alleged to show that the transaction was any otherwise than it appeared to be.”
So in Charles v. McCune (57 Mo. 166), the plaintiff, who had sent certain stock from Missouri into Texas during the war, in contravention of the non-intercourse proclamation of the president, was held to be entitled to maintain trover against the defendant, who acquired the possession of the stock, and converted the same to his own use. While the violation of the proclamation rendered the stock subject to confiscation, that fact constituted no defence to the conduct of the defendant.
III. It is pleaded in the answer, and insisted on here, that the defendant having received the whiskey from Flaisig as collateral security to indemnify defendant as surety on the note to the bank, the property could not be taken from him by the plaintiff until proof of satisfaction of the debt for which it stood pledged.
It may be conceded, for the sake of this contention, that the whole of the note has not been paid to the bank. It may further be conceded that .the defendant had the right to hold the whiskey until the whole of the debt to the bank was discharged. It may also be conceded that Flaisig could not, while defendant so held the property, transfer the same to a third party discharged of the security, against defendant’s consent. But one difficulty in the way of defendant’s securing op this appeal any special benefits from this specific defence is, that in no instruction asked by him did he present this precise issue unmixed with other objectionable matter.
Throughout the declarations of law asked by him, touching this matter, he made the defendant’s liability to depend on the fact as to whether any particular barrel
“7. The court instructs the jury that before the plaintiff can recover in this suit he must show by the evidence, to the satisfaction of the jury, that he delivered to defendant the barrel of whiskey sued for, and that he received the same as bailee of plaintiff and agreed to hold it as such for him.”
This, taken in connection with the instructions given ■on behalf of the plaintiff, clearly indicates that the jury found by their verdict that defendant accepted as bailee from plaintiff the whiskey in question, and agreed to hold it as such for plaintiff.
IY. This brings us to a consideration of the only remaining question of importance arising on this record. The appellant insists that there was no sufficient description and delivery of the particular barrel of whiskey to enable the plaintiff or the jury to identify the' same ; and, therefore, the contract is void for uncertainty. There is no little confusion and conflict in the American decisions bearing upon the question of a sufficient identification of personal property where a party is attempted to' be sold out of a greater bulk or quantity of like'
We must determine this issue, as applied to the facts of this case, by the abstract of record before us. If the appellant desire, such questions to be properly considered, depending as they do upon the whole facts bearing thereon, he should have presented in printed abstract the whole of the evidence. Otherwise we must presume that the instructions of the court were properly predicated upon the evidence. The evidence, as we are enabled to gather it from the fragmentary parts presented in the abstract by both parties, shows that the barrel of whiskey bet, and which defendant had in his possession, was particularly described as “Howard -whiskey of the spring of 1881.” When Plaisig and plaintiff went to defendant to deposit the stakes, plaintiff asked him if he had such a barrel of whiskey in his possession belonging to Plaisig ? He answered that he had, and stated to plaintiff what he would be willing to •give for it in the event plaintiff should prove to be the winner. He accepted from plaintiff his check for the one hundred dollars put up by him, and agreed to hold such barrel of whiskey against the same. After the election, when advised by the parties that plaintiff had won the bet, the defendant agreed to hold this barrel of whiskey for plaintiff until called for. No question about identification was suggested by defendant. If any other barrel, or all of them, held by defendant in pledge bore •a like brand, or if the barrels differed in quantity or value, the defendant should have made these facts ap
The instructions asked by defendant were properly refused, because they required that the particular barrel of whiskey should have been separated and set apart from the other thirty barrels, and accepted by the plaintiff. They ignored the fact of the distinguishing brand on the barrel in question, and of defendant’s consenting to hold the barrel for plaintiff. No manual segregation was essential to identification or delivery.
Another instruction asked by defendant required the jury to find that the identical barrel was delivered by Flaisig, or some one authorized by him, to plaintiff, and asserted that no mere words would constitute a delivery, “but the plaintiff must have accepted and actually received a part, or all, of the whiskey won.”
This was calculated to mislead, and, under the facts of this case, asserted a wrong proposition of law. It is not always necessary that the owner of personal property should be in the actual possession of it to transfer the title. Where the property is in the possession of an agent or bailee of the owner, and the owner sells it, and the agent or bailee is notified of the fact, he then holds for the vendee as his agent or bailee. His possession is that of the vendee. Erwin v. Arthur, 61 Mo. 387; Worley v. Watson, 22 Mo. App. 552-3.
In such case mere words were sufficient to pass-, the title from Flaisig to plaintiff, and it was not necessary that plaintiff should “actually receive” it.
On the whole record we are of opinion the defendant had a fair trial, and ’the verdict was for the right party. The judgment of the circuit court is accordingly affirmed.