72 Mo. App. 226 | Mo. Ct. App. | 1897
This is an action of replevin brought by the plaintiffs (wholesale merchants at St. Joseph) to recover a lot of dry goods which had formerly been in the possession of Wilhoit and Wilson at Kidder, Missouri. The claim of the plaintiffs is based substantially on the following state of facts which their evidence tended to prove: that plaintiffs delivered the goods in controversy to Wilhoit & Company in pursuance of a sale which said plaintiffs believed they were making to the defendant bank; that Wilhoit & Company were at the time insolvent and that plaintiffs would not have parted with the goods except on the belief that the Kidder store was at the time being run by the defendant and that said Wilhoit & Company were merely acting as agents for defendant. But subsequently plaintiffs learned that this was untrue and that they had been misinformed by said Wilhoit and Wilson and that the bank was not the owner of the store nor conducting its business, and had no claim upon the same except as beneficiary in a chattel mort
On a trial by the court without a jury there was judgment for defendant and plaintiffs appealed.
Plaintiffs requested the trial court to give an instruction the purport of which was that if the facts were as above stated; that if plaintiffs had parted with the goods under such mistake of fact; that they intended at the time to sell the same to defendant bank and not to Wilhoit & Company, and that the goods were turned over to said Wilhoit & Company in the belief that they were agents for defendant and to whom alone plaintiffs intended to extend credit, and that said bank thereafter refused to recognize said agency or said purchase and refused to surrender the goods, then plaintiffs should recover.
- The court refused to so declare the law, and this action by the court furnishes the main ground for comlaint on this appeal.
This being so the pretended sale was void ab initio, and the plaintiffs would be entitled to reclaim their goods wherever found, even in the hands of an innocent purchaser. ■ See cases last cited.
For reasons already assigned the judgment must be reversed and cause remanded.