55 Mo. App. 364 | Mo. Ct. App. | 1893
Defendant Manard has appealed to this •court from a judgment against him.for $70.38, an alleged balance due plaintiff Harding oxi a sale of one hundred and seventeen hogs. The evidence discloses about this state of facts: On the evening of April 4, 1892, Harding, who was a Linn county farmer, brought the hogs to Meadville and the same were shipped to Chicago in the name of Botts a regular dealer and shipper of stock. On April 6, while the hogs were in transit, Manard agreed with Harding for the purchase of the hogs at the rate of $4.10 per hundred, according to their weight at point of-shipment, less whatever the
The defendant seeks to escape liability on the charge that the agreement had between him and the plaintiff was a wagering contract, and such as the courts will not enforce. It is claimed by Manard that it was not the intention of Harding and himself, of .the one to sell, and the other to buy, the car load of hogs, but that it was a mere gambling on the fluctuation of the market at Chicago.
Admitting now that there was some evidence to sustain defendant’s contention, and yet he is in no condition to complain here. The two theories, to-wit,of actual bargain and sale of the hogs as is claimed by Harding, or that it was a mere wagering agreement, as asserted by Manard, were, on instructions sufficiently favorable to the defendant, submitted to the jury, and they have found for the plaintiff. The court gave two instructions, covering in the clearest manner both
This last instruction was most favorable for the defendant. It presented for decision every fact upon.
And again, as was said in Erwin v. Arthur, 61 Mo. 387: “When the goods are in the possession of the bailee or agent - of the seller, a complete or absolute-sale confers an immediate and valid title to the purchaser without any formal delivery of the possession The possession of the bailee or agent then becomes that of the purchaser, and operates not merely as a transfer of a right of action, but of the goods themselves.” Hence it follows that when Harding and Manard agreed upon terms of sale of hogs, which were then in possession of Botts (Harding’s bailee or agent), there was an immediate transfer of title, and Botts’ possession became that of the vendee, Manard.
This cause seems to have been fairly tried; the verdict and judgment finds ample support in the evidence, and we will not, therefore, disturb it. Judgment affirmed.