80 Mo. 158 | Mo. | 1883
This is an action of replevin, instituted in tbe law and equity court of Jackson county by plaintiffs against defendants, to recover personal property, consisting
The goods, with the exception of one shipment, were all ordered by Kerr from time to time, as he desired. The only goods received from plaintiffs on verbal order, was the first shipment which Kerr ordered in person at plaintiffs’ house in Chicago. Shipments extended from November, 1878, to July, 1879. In shipping the goods, plaintiffs sen,t Kerr a bill of the goods sold; and the bill in each instance, was in the form of an ordinary merchant’s hill of sale of parcels, and recited that Clark & Kerr, and, after the dissolution of that firm, B. B. Kerr, bought of Chapman, Grier & Co., the plaintiffs, the items of goods described in the bill, and opposite each item plaintiffs set out the price at which the goods were sold, which was the same price at which plaintiffs sold the same class of goods to others. In quite a number of the hills sent to Kerr, the following statement was added : “ Terms sixty days, or three per cent off for cash, if remitted in ten days from date of invoice.” "When plaintiffs sold Kerr these goods, they entered an itemized account of the goods sold in their ledger, and charged Kerr with the full amount, as in the bills rendered to him. These accounts were kept in the same book, and in the same manner, as accounts of goods sold to other purchasers, and were ordinary debtor and creditor accounts. No directions were given by plaintiffs to either Clark & Kerr, or Kerr, to keep the goods separate and distinct from.
The evidence for plaintiffs tended to prove that the goods were not sold to Clark & Kerr, or Kerr, but were consigned to them by plaintiffs for sale, under an agreement made with Kerr, when the first shipment was made. The court instructed the jury, at plaintiffs’ instance, that “ if the goods in controversy were shipped by plaintiffs to Clark & Kerr, or Kerr, their successor, as consignees, the verdict should be for plaintiffs.” And refused one asked by plaintiffs to the effect that “ if the goods were shipped by plaintiffs under an agreement between the parties that they should be consigned to Clark & Kerr, to be sold for plaintiffs, the verdict should be for plaintiffs,” notwithstanding said goods were billed to the consignees on the ordinary bill-heads used by plaintiffs in case of goods sold and delivered, and notwithstanding Clark was never informed that said goods were not sold to Clark & Kerr.
By defendants’ instruction number two, it was conceded that the bills of shipments were not conclusive evidence of a Sale °f tte g°°dS> but tllat Í1} WES COm“ petent for plaintiffs to show that, notwithstanding the delivery of these bills, the goods were really consigned to the consignees, as bailees and not as purchasers, and that is substantially what was declared by plaintiffs’ refused instruction. Appellant complains that the court, in that instruction for defendants, declared that
That portion of the instruction is objectionable which declares that the jury should find, in order to overcome the presumptive evidence furnished by the bills of the goods, that they were delivered on consignment and were received and accepted on consignment, and not otherwise. If by the agreement they were not sold but consigned for sale, the consignees could not invest themselves with title by receiving them as purchasers, unless by some subsequent act it could be inferred that the consignors agreed that the consignees should hold as purchasers. There was evidence tending to prove that the goods were not sold by plaintiffs, and also that the consignees received and treated the goods as theirs by purchase. Therefore, under this instruction, if the jury found that the goods were not sold, but only consigned for sale, before they could find a verdict for plaintiffs, they had also to find that Clark & Kerr received and accepted the goods as consignees, and not as purchasers.
It appears from the record that the assignment by-Kerr was made to Watts, on whose refusal to act as assignee, Scarritt was appointed by the court, and the court instructed the jury that Scarritt’s title took effect from the time the assignment was executed, acknowledged and recorded, and
That deposition was taken by consent and under an agreement in writing entered into by the attorneys for the parties respectively. It was stipulated that . , y £ it should be read on a trial ot the cause, subject to all objections on the grounds of irrelevancy, illegality and incompetency. Plaintiffs objected to the admission of the deposition, as evidence, on the ground that Kerr was then in Kansas City, where the cause was on trial, as appeared by the officer’s return upon a subpoena issued by plaintiffs for Kerr. The court overruled the objection and the deposition was read. Our first impression was, that the deposition should have been excluded, but a careful consideration of the agreement has led us to a' different conclusion. . It was taken by consent of parties, and afterward, as it appears from the agreement, it was stipulated that it should be read at the trial, subject to objections on grounds of irrelevancy, incompetency and illegality. The objection that Kerr was within the jurisdiction of the court was not one of those which plaintiffs reserved the right to make on the trial. "When a deposition is taken on notice, in the absence of stipulations on tho subject, the deposition cannot
The trial resulted in a verdict and judgment for defendants, and the value of tbe goods found by tbe jury, under an instruction of tbe court, was tbe . , market value at the time tbe suit was brought. This question was considered in tbe case of Pope v. Jenkins, 30 Mo. 528, and it was there held that tbe value of the goods, at tbe time of tbe assessment, is tbe value to be found by tbe jury, and if depreciated in plaintiffs’ bands, in consequence of tbe replevy of tbe goods, or by bis acts after tbe replevy, tbe jury should consider such depreciation in tbeir estimate of damages occasioned by tbe taking and detention. Woodburn v. Cogdal, 39 Mo. 228, and Miller v. Whitson, 40 Mo. 101, are cited as announcing a different doctrine. In both of those cases, tbe question before tbe court seems to have been tbe measure of damages. In tbe latter it is observed: “ It is well settled by tbe decisions of this court that tbe measure of damages in such cases, where the finding of tbe jury is for tbe defendant, is tbe value of tbe property when taken with legal interest thereon to tbe time of trial.” No authority whatever is cited in tbe opinion, nor in that delivered in Woodburn v. Cogdal, in which it was said: “ Tbe true measure of damages in such cases is tbe value of tbe property at tbe time of tbe seizure with interest at tbe rate of six per cent per annum until tbe time of trial.”
The statute, section 3854, Revised Statutes, is substantially tbe same as section 11, Revised Statutes 1855, page 1245, construed in Pope v. Jenkins, supra, and provides that “if plaintiff fail to prosecute bis action with effect and without delay, and shall have tbe property in his possession, and defendant in his answer claims the same and demands
The judgment is reversed and the cause remanded.
