11 Mo. App. 492 | Mo. Ct. App. | 1882
delivered the opinion of the court.
This was an action of replevin for a lot of cigarettes. The -goods were taken from defendants by .the sheriff and delivered to the plaintiffs. On the trial a jury was waived, and the cause was tried by the court. The finding was, that the plaintiff is not entitled to recover, and that defendants are •entitled to a return of the goods or their value. Judgment was entered accordingly, and the value of the goods was assessed at $460.
At the close of plaintiffs’ case, defendants asked an instruction to the effect that under the pleadings and evidence plaintiffs cannot recover, and the defendants are entitled, to a return of the goods or their value. It is necessary at the threshold to determine the effect of this declaration of law, which was the only declaration of law asked or given in the case.
Where a case is tried by the court without a jury, if no •declarations of law appear and there are no special findings of facts, and the case is not a proceeding in equity in which the appellate court reviews the facts and weighs the evidence, the judgment ought not to be reversed on appeal as unsupported by evidence, if on any possible theory of the law applied to any possible finding of facts, supported by substantial evidence, the judgment can be sustained. Where
No other instruction being asked in the present case, we must affirm this judgment unless it appears that the trial court erred in the admission or exclusion of evidence. Continental Bank v. Bradley, post. p.-. But appellants do not pretend that any such error appears on the record. Their contention is, that, conceding that certain facts were proved, then, on what they conceive to be the law applicable to those facts, plaintiff was entitled to a judgment. We can say, on examining a record, that there was a total absence of proof of certain facts, and that proof of those facts was a condition precedent to recovery. But in a case where we are not the legally appointed triers of the
Towards the end of June, 1880, plaintiffs were carrying* on the tobacco business in Rochester, New York, and one Wells was dealing in tobacco in St. Louis. An agent of plaintiffs called on Wells for the purpose of introducing through Wells, to the St. Louis trade, a certain brand of cigarettes. In consequence of what passed between this agent and Wells, one hundred thousand cigarettes were delivered by plaintiffs to Wells. A month afterwards, Wells*, being indebted to defendants, in consideration of that indebtedness, conveyed to defendants his whole stock in trade contained in his store, amongst which was the property in question, the remainder of the lot of cigarettes that had not yet been sold by Wells. Plaintiffs in this action replevied these goods from defendants, claiming that they had not been sold by them to Wells, but delivered to Wells to sell on commission.
Appellants contend here: 1. That there is no evidence to warrant a finding that the cigarettes were sold to Wells. They say that- the fair inference from the evidence is, that the goods were delivered by plaintiffs to Wells to be sold by him on commission on plaintiffs’ account. 2. They contend that the law of the case is, that one who takes personal
As to the first proposition, it is clear that there was some evidence from which the trier of the facts might find that the cigarettes in question were really sold by plaintiffs to Wells, and not merely delivered to him to sell on commission. The bill shipped to Wells with the goods was as follows: —
“Rochester, N. Y., July 6, 1880. Mr. M. S. Wells, bought of S. F. Hess & Co. (Terms cash, sixty days.)-
100 M Cigarettes, $6...........$600 00
Less 20 per cent......... 120 00
$480 00
Less 2V2 per cent......... 12 00
$468 00”
And plaintiffs’ witness testified that the agent wanted to sell the cigarettes to Wells; that Wells was unwilling to take them ; that the agent said his firm were not in the habit of selling them on commission, but would send the goods, and that at the end of sixty days Wells could pay for what was sold, and return the rest, or pay for them, as he pleased. Hess & Co. retained no control over the goods. They put it in the power of Wells to show that he had bought the goods out and out. Wells himself says ho was not to receive a commission, but was to have for his profit all he could get over $4.80 a thousand, which was the price he was to pay for the cigarettes.
As to the second proposition. It is held in New York, that one who takes personal property in payment of an antecedent debt, is not to be protected as a purchaser for value, but stands in the shoes of the Vendor. But in New York, this is the rule even in the case of the purchaser of negotiable paper before maturity. Bomard v. Campbell, 58 N. Y. 73. In Missouri the rule is otherwise as to the
If, then, the trial court found, as it may have found, that Wells bought these cigarettes of plaintiffs, and further found, as it may have found, that defendant, in good faith took the cigarettes of Wells in payment of an antecedent debt, and further found as a matter of law, that one who in good faith takes personal property for an antecedent debt is a purchaser for value, it must necessarily find for defendant, as it did.
The defendant chose to ask no declarations of law from the court, and as no declarations of law, except one to the effect that the court finds for defendants upon the whole case, were asked or given, we cannot pronounce with certainty what facts were found by the trial court or upon what theory of the law the judgment was given. Every presumption is to be indulged in favor of the action of that court. It seems probable that the court did find a sale to Wells, and that defendants took the goods bona fide in payment of an antecedent debt of Wells to them, and that as a
If it clearly appeared from the record that such were the findings of law and facts, we see nothing in the findings which would warrant a reversal of the judgment.
' The judgment is affirmed.
