Botts v. Spencer

42 Mo. App. 184 | Mo. Ct. App. | 1890

'Gill, J.

Upon an examination of this record we discover no substantial reason for disturbing the judgment of the lower court. Defendants’ counsel urges, with apparent sincerity, that a demurrer to plaintiff’s evidence should have been sustained, and that plaintiff’s instruction, numbered 1, should not have been given. We see little reason for such contention. Although some contradictory evidence was adduced, yet the jury was amply justified in its finding. By said instruction number 1, the jury was told in the words of said instruction, that, “ If the jury believe from the evidence that, within or about the year 1859, the plaintiff’s father, Elijah Harvey, received from the plaintiff a negro girl, then a slave named Seely, and that, in consideration thereof, the said Elijah Harvey agreed to give plaintiff either one of two negro girls, then owned by said Harvey, or pay plaintiff for said girl, Seely, the sum of six hundred dollars which should be paid on or prior to the death of said Elijah Harvey ;then if the jury further believe, from the evidence, that the plaintiff never received from said Elijah Harvey another slave in place of and for said girl, Seely, and that he never paid her the contract price for said slave, the jury should find for the plaintiff.” The jury, on unobjectionable •testimony, found the existence of the facts upon which the instruction is based, and such facts clearly warrant a recovery.

Defendant’s counsel further complains of the court’s refusal to give his second instruction, to-wit: “2. If the jury finds, from the evidence, that Elijah Harvey, during his lifetime, gave to the plaintiff, Elizabeth Botts, then a married woman, the slave, Seely, they are instructed that said gift, accompanied by possession in plaintiff vested the title in her husband, and notwithstanding they may find that afterwards said Elijah Harvey took back said slave, with the understanding that.he would pay said plaintiff for the same at some future time, their verdict must be for the defendants.” This action of the trial court was entirely proper, while, by the law as it existed in 1859 (when Mr. Harvey gave the slave to his married daughter), the chattels of the wife vested in the husband, yet it has been repeatedly held in this state that the husband may forego the exercise of this right to the wife’s personal property, and may permit her to retain the control thereof, to manage, use and possess, the same as her individual property-free from any claim on his part. See Bethel v. Bailey, 35 Mo. App. 463, and cases cited at p. 469 ; Botts v. Gooch, 97 Mo. 88. It is beyond. dispute here that Mrs. Botts received this slave from the father, managed, used and controlled her as her own, and, by her husband’s consent, sold her to Mr. Harvey.

Besides, in the words of an authority cited, “the defense is essentially a denial of the consideration of the contract, and it is but reasonable that a person who holds the possession of chattels, under a purchase, shall not be allowed to deny the consideration of his promise to pay for them while his possession is not disturbed.” Morrison v. Edgar, 16 Mo. 414. Let the judgment of the circuit court be affirmed.

All concur.