Bridges v. Bell

| Mo. | Jan 15, 1850

BIRCH, J.

In tlie spring of tlie year 1846, one Deas contracted with, the appellant, Bridges, to split him 1,500 rails daring the approaching fall, for a cow and calf. The stock was accordingly delivered to Deas, who subsequently, in the month of July, sold the calf to Bell, the appellee. Bridges refused to deliver the calf to Bell, as the rails had not been made, whereupon Bell sued him before a justice and recovered a judgment. Bridges carried it to the Circuit Court, where Bell again obtained judgment, to reverse which the case is brought here. The record is long-, hut the foregoing are the substantial and governing facts, as found by the jury under the instructions of the court.

As to the objection that Deas was not a competent witness, the application in this case of the authority to which we have been referred in 2 Kent, is unperceived. From the testimony in the record, it can scarcely be supposed that the circumstances were such, and that the witness had so acted as to incur any liability to the plaintiff for costs ; and he not only swears that he has no interest in the event of the suit, hut the same conclusion is apparent from the tenor of all the evidence, namely, that if the plaintiff gained the suit, the witness would remain hound to the defendant for the value of the calf, and vice versa, if the suit terminated in favor of the defendant. His interest, therefore, if not entirely balanced, was at least of that doubtful character which could not go to his competency, but to his credibility alone. ¥e may as well add, that if the application of general principles left any doubt upon our minds in a case like the present, the spirit and meaning of a well known, statutory enactment, of our own, would still further confirm us, that the testimony was properly received.

Without perceiving or admitting that in a case like the present a demand of the property was necessary before the commencement of the suit, it may be remarked that this witness also established that fact. Supposing, therefore,-that the opinion already expressed in support of his competency, will readily suggest the concurrence of this court with the finding of the jury, we but superadd the instructions upon which the case was submitted to them, as comprehending our estimate of the entire law in similar cases. For the plaintiff: 1. If the jury believe from the evidence that Bridges sold the calf to Deas on a credit, then Deas had a right to sell it to Bell, whether he ever paid Bridges for it or not, and Bell is entitled to recover its value, if he purchased it from Deas. 3. Even if the sale by Bridges to Deas was conditional, yet if Bridges let Deas have the apparent ownership of the calf, then Bell, by buying from Deas, obtained a good title, and is entitled to recover. 3. Whatever may have been the conversation between Bridges and Deas at the time of the arbitration, if Bridges before that time had sold the calf to Deas, and Deas had sold it to Bell, then Bell had a good title and is entitled to recover. 4. If the jury believe from the evidence, that Bell was the owner of the calf, at the time he brought his suit before the justice, and that he had a right to the possession of it at the time, they should find in favor of Beil, although he may not have had actual possession of the calf. 5. If they believe from the evidence, that Bridges sold the cow and calf to Deas for 1,500 rails, to ho paid in the fall, and let him have the possession of the same, and that Deas afterwards sold the calf to Bell, previous to the institution of this suit, they must find in favor of Bell, unless it has been proven-that Deas was not to have the cow and calf until the rails were made.

For the defendant. 1. Unless the jury believe from the evidence that Bell had the actual possession, or the right to immediate possession of the calf in question, at the time of bringing suit, they must- find for defendant, Bridges. 7. If the jury believe from the evidence, that the cow and calf were not, by the contract between Bridges and Deas, to be the property of-Deas until the rails were made, the title did not pass to Bell by the sale of Deas, and Bell cannot recover, unless they believe from the evidence that Bridges gave Deas the possession of the calf prior to the sale to Bell. 13. If the jury believe from the evidence that the possession of the calf by Deas was consistent with the contract made by Deas with Bridges, then the apparent ownership of the calf, if the contract was conditional by Deas, gave no title under the purchase of Deas from Bridges, and could confer no title on Bell, and defendant (Bridges) ought to recover.

There were other instructions asked by the defendant, and other points manufactured in the case, hut it is deemed unnecessary to further consider or remark them than by alluding to the point of the third instruction, and con-trastively commending that general professional stiength and fairness, which, nobly disdaining the dernier attempt we sometimes regret to witness, perceives correctly that the path, alike to eminence and success, lies at last in the emulation to elucidate and enforce rather than confuse and mislead. One course looks apparently and considerately to the'end, whilst the only effect of the other has been, and must ever be, ruinously to protract the most petty litigation. Judgment affirmed.