28 Mo. App. 233 | Mo. Ct. App. | 1887
delivered the opinion of the court.
This is a suit in replevin for certain fixtures and furnishings contained in a saloon on the corner of Sixth and Chestnut streets, in the city of St. Louis. The cause was tried before the court, sitting as a jury, and judgment was rendered for the plaintiff.
It appears from the testimony that, in the year 1885, Charles Martin occupied the premises as a tenant, and owned the fixtures and furnishings in controversy. In September of that year, being indebted to John H. Vette, for borrowed money, he conveyed the property
The defendant Niederweiser’s account differs from this in many particulars. He testifies: “I rented the
It is insisted for the defendants that the title to the-chattels became vested in Niederweiser by his payment of the one hundred dollars to Yette, and his taking immediate possession of the property as owner, by virtue of his purchase from Yette ; and that his title, so-acquired, could not afterwards be divested by the plaintiff’s payment of the balance due on the purchase price, and the taking of the bill of sale. This result might easily-
No instructions were given or refused on either side. Every presumption must, therefore, be in favor of a correct application of the law, by the trial court, to the facts which it found to be satisfactorily proved. Conversely, it is to be presumed that the court’s finding upon the issues of fact was such as would- legitimately lead to the judgment rendered. From these considerations we reach the conclusion that the court found the facts to have been as testified to in behalf of the plaintiff, and not as they were presented for the defendants. There was substantial testimony in support of this finding, and a rule, too familiar to be repeated here, precludes all inquiry into its correctness, or into the weight of the testimony by which it is either sustained or assailed. It follows that we can not sustain the point made for the defendants, because we do not find in this record the elements of fact which would be essential to that effect.
An ice-box was one of the articles mentioned in the petition, the replevin bond, and the bond given by the defendants for the retention of the property. The defendants offered to prove that this article was not in the saloon at the time of the levy, but was then and previously, and had ever since been, in the possession of the plaintiff. Upon the plaintiff’s objection, the court excluded this testimony, on the ground that the defendants could not be permitted to contradict, by oral testimony,
The court, in its judgment, assessed the value of the property at three hundred dollars. We find in the record no evidence in support of this valuation. The only witness who testified on the subject placed the valuation of all the property in dispute at from one hundred to one hundred and twenty-five dollars. A memorandum made by the learned judge who tried the case, and inserted in the record, intimates that the estimate was reached by taking into consideration the Vette and Martin sale for four hundred dollars, the bond given by the defendants on the basis of a valuation of three hundred dollars, and the fact that Uhlenhuth loaned upon the property a much larger sum. But these matters furnish no legal criteria of value, for any purpose. The sale by Vette and Martin was a mere private transaction, and carried with it the possession of the saloon in which the fixtures were to be used. The bond given by the defendants neither recited nor admitted any value, and the security taken by Uhlenhuth for his loan to Niederweiser covered the leasehold and other property of unknown value, besides what is here in controversy. No finding of value, or of an amount of damages, can be sustained, when not based upon legal evidence. Ascher v. Schaefer, 25 Mo. App. 1; Anchor Milling Co. v. Walsh, 24 Mo. App. 97.
If the plaintiff will, within ten days after the filing of this opinion, remit all of his recovery (excluding costs) in the circuit court, excepting the sum of one