30 Mo. 520 | Mo. | 1860
delivered the opinion of the court.
This was an action for the alleged wrongful taking and conversion of certain slaves. The petition alleges that in the winter or spring of 1859, one Henry H. Gratz hired of the defendant Kinclieloe, of Carroll county, four slaves for the year 1859, and executed and delivered his promissory note to Kinclieloe for their hire, and that said slaves were delivered by Kinclieloe into the possession of Gratz, in Lafayette county ; that in May, 1859, Gratz, being indebted to plaintiff, transferred the unexpired term of the hire of said slaves to him, and delivered possession thereof; that afterwards, in May, 1859, Dickenson came to Lexington and requested plaintiff to give up the possession of the slaves for Kinclieloe, which being refused, it was proposed and agreed to that the matter be submitted to arbitrators ; that said arbitration was accordingly entered into, and the slaves awarded to plaintiff for said unexpired term, which decision was mutually accepted by them as d final settlement of the matter in dispute. The petition further alleges that on the night of the following day on which the arbitration was had, defendant Dick-enson wrongfully and secretly decoyed said slaves out of plaintiff’s possession, and took and delivered them to the
The answer admits that Gratz hired from Kincheloe, about the time stated, the slaves in controversy, but denies that they were hired in the manner or upon the terms alleged; that said Kincheloe hired said slaves to Gratz to labor for him until December 25, 1859 ; and it was expressly stipulated in said contract of hiring that said slaves should be kept by said Gratz in the totvn of Berlin, Lafayette county, and not elsewhere, and that, in case they were removed from Berlin and especially to Lexington, Kincheloe might terminate the hiring and reclaim therp; that the slaves were removed to Lexington by Gratz or plaintiff, or both, in violation of said agreement, and-that'plaintiff was well apprised of the terms of said contract of hiring; that the slaves were obtained from Kincheloe by plaintiff and Gratz with a knowledge of the latter’s insolvency and with a fraudulent intent to deprive Kincheloe of their services. Kincheloe denies any knowledge of Dickenson’s agency in taking the slaves from plaintiff’s possession, and of the arbitration respecting them; denies that Dickenson had any authority from him to submit the matter to arbitrators. The defendants deny that the slaves were brought into Carroll county by Dickenson and delivered to Kincheloe, and that they were converted by them to their own use wrongfully or otherwise as charged, and deny that they withheld said slaves from plaintiff’s possession. Kincheloe “ admits that the slaves have been in his possession since some time last May, (1859,) and are now in his possession'.” “ And these defendants aver that said Kincheloe’s aforesaid possession of said slaves has always hitherto been and still is rightful and lawful.”
Prom the facts the evidence conduced to prove and those admitted by the pleadings, it appears that there was a hiring of the slaves for one year by Kincheloe to Gratz; that pos
Of the instructions given for the plaintiff, the third only is excepted to. This instruction declares that if the jury believe the plaintiff and defendants submitted the matter in dispute, as to the possession of the slaves for the unexpired term of hiring, to arbitrators selected by them, and an award was made, of which they were notified, and it was against the defendants, they had no right afterwards to take said slaves from plaintiff’s possession until after the expiration of the term of hiring. It is insisted that there was no evidence, as to Kincheloe, on which to base this instruction* and it should, therefore, have been refused. It may be conceded that there was no evidence of authority from Kinch-eloe to Dickenson to enter into an ai'bitration, yet we do not see that the jury could have been misled, or that Kincheloe was prejudiced; it was a mere abstraction which, under the pleadings, was not decisive of the questions at issue and did not involve the merits of the case. If there was no evidence whatever on which to base the instruction, as is maintained, it can scarcely be presumed that the jury paid any attention to it or were influenced by it in giving their verdict. And if it be said that the court, in giving it, must have assumed that there was some evidence to warrant it, and that this may be presumed to have had its influence with the jury, still whatever may have been their conclusion on this point, it left the question on which depended the plaintiff’s right of recovery untouched. Taking the hypothesis of the instruction to be true, the plaintiff was not therefore entitled to a
Instructions numbered five and sis, asked by the defendants and refused, it is conceded by counsel, were not warranted by any evidence in the cause. But it is contended that the court erred in refusing instructions two, three, seven, eight and nine, and in giving the tenth on its own motion. The seventh declares that the^rights of Kincheloe were not affected by the arbitration, unless there was evidence to satisfy the jury that he authorized it to be entered into, or after the arbitration was had he adopted and ratified the award therein made. The ninth declares that although Dickenson may have been Kincheloe’s agent to hire and did hire the slaves to Gratz, he had no authority as such agent to enter irito the arbitration,- The point involved in these instructions has been sufficiently noticed in the observations made on the third instruction given for the plaintiff.
The eighth instruction states the hypothesis of a mere possession by Kincheloe as a deduction or conclusion, and the only one that could be legitimately drawn from the evidence in the cause, and of course excluded from the consideration of the'jury any and all other, facts which the evidence may have conduced to prove.. It presents rather a comment on the evidence, selecting a single fact, which it assumes to have been proven, and tells the. jury that this fact is not enough to render Kincheloe liable. Whether it was a mere possession or not, or such as showed an assent to the alleged wrongful act of his co-defendant, was for the jury, from a consideration of all the facts in the case, from considering how and when it was obtained, and the circumstances under which it was transferred from the plaintiff to Kincheloe.
The fourth instruction given for the defendants and the tenth given by the court on its own- motion, though differing slightly in the phraseology from the second, which was refused, are substantially and in legal effect the same. At least, we do not perceive any inconsistency in the principle of
It is further maintained that there is no evidence whatever to implicate Kincheloe in the transaction, or to connect him with it in any manner so as to create a liability, and that the third instruction asked by the defendants, which declares this proposition in substance, should have been given to the jury. We think it clear that the jury may have well inferred a contract of a general hiring from year to year, from the facts in evidence, particularly Winsor’s testimony, and the admissions in the answer. The petition alleges a hiring of this character, and the answer admits a contract, but says it was a hiring upon certain terms and conditions, whereby the defendant Kincheloe could have terminated it and reclaimed the slaves. It is not pretended that there is any evidence whatever of such an agreement as the defendants allege, and the onus was of course on them to establish it. The hiring for a year being shown and the delivery of possession pursuant thereto being admitted or not denied, Gratz was the owner of the slaves for that period, and held them with all the rights incident to that kind of special ownership. Being thus in possession lawfully acquired, Gratz had a right to transfer the unexpired term to the plaintiff. The slaves were transferred to him, and soon thereafter were by the wrongful act of Dickenson, as the evidence tended to show, removed from his possession and found with the defendant Kincheloe.
Judgment affirmed ; the other judges concurring.