Field v. Langsdorf

43 Mo. 32 | Mo. | 1868

Baker, Judge,

delivered the opinion of the court.

This case has been here before, and will he found reported in 36 Mo. 441, where a full statement of it can be seen. It is unnecessary to restate it here. The testimony is substantially as it was then. The only material difference consists in testimony introduced by the respondents tending to show that the plaintiffs did not intend to abandon their alleged purchase of the goods in question by taking out an execution on the judgment in their favor against Meirand and having the same levied on the goods as his property; that they were advised by their attorney that it would not affect their title to the goods, and would be the most convenient way to get possession of them.

*35The court below, on its own motion, instructed the jury that “if, after the supposed sale by Meirand to interpleaders, they caused an execution to be levied on the goods as the property of Meirand, this was a solemn admission on their part that the goods were the property of Meirand, and not the property of interpleaders, and estops interpleaders from claiming the goods in any other way than by virtue of said levy.”

The conduct of the appellants in causing an execution to issue on a judgment that constituted the consideration for the goods they claim to have purchased, and which was fully satisfied if the purchase was in fact made, and "in having it levied on the goods in question as the property of the person from whom they claim to have purchased them, is totally inconsistent with their claim to the property. Nor is this glaring inconsistency relieved by the explanation given. It was a gross abuse of the process of the court to use it in getting possession of the goods in such an 'illegal and improper manner. The court was fully justified in characterizing the transaction in strong language.

We think the appellants were fairly estopped, and that the instruction complained of was properly given.

The judgment of the court below is affirmed.

The other judges concur.