Kirkendall, Jones & Co. v. Hartsock

58 Mo. App. 234 | Mo. Ct. App. | 1894

Ellison, J.

This action is replevin for certain merchandise. The defendant is the sheriff of Bates county and had possession of the goods under certain writs of attachment issued at the instance of certain creditors of Meyer who purchased the goods of plaintiffs. At the close of plaintiff’s case the court gave a peremptory instruction to the jury to find for the defendant and to assess the value of the goods as of the time they were replevied.

It appears that plaintiffs are wholesale merchants .at Omaha, Nebraska, and that Meyer was a retail merchant at Rich Hill, Missouri. That plaintiffs’ traveling salesman sold the goods in question to Meyer on credit, and that he took his order on the representation made to him by Meyer that he, Meyer, was free from all debt which he could not pay when due. Meyer’s father-in-law, "Wolfe, being especially mentioned, he told plaintiff’s salesman that he did not owe Wolfe anything; and that relying upon this the salesman sent the order into the house and recommended it, though it does not appear that the salesman made known to plaintiffs the •representations which Meyer made to him. It further -appears that this salesman was not what was known as the “credit man” of the house, the man who acted In such capacity being one Hall, at Omaha. It further appears that this statement was false, that Meyer was In debt to his father-in-law $3,700.

On this showing appearing in the testimony in -plaintiff’s behalf it was error to take the case from the Jury. Plaintiffs’ salesman testified that: “As near as I can remember, these goods were sold early in the month of March, 1892. At the time I sold this bill of goods to Mr. Meyer I asked Mm Ms financial condition. I told' him that there had been some rumors that he was quite heavily involved and I wanted him to tell me the straight of it. He told that he didn’t owe a dollar to any person that he couldn’t pay when it was due. Then I asked him if his father-in-law, Mr. Wolfe, of St. Louis, had any claims agaifist him in any way; if he owed his father-in-law any money. He says ‘I don’t owe him a dollar,’ and used this expression ‘The old man has no strings on me.’ And on the strength of that statement I recommended the goods to be shipped.” He further testified that shortly thereafter the goods were shipped; that his recommendation was, in some instances, considered with other matters in determining whether to ship to parties on his order; but that no sales he had recommended had ever'been refused by plaintiffs. It is quite true that plaintiffs could have made their case more satisfactory by offering testimony from some member or agent of the firm showing in direct terms, the moving cause of the consummation of the sale on their part, but there is sufficient in the testimony which was given to submit to the determination of the jury. On a demurrer to testimony we are to allow every legitimate and reasonable inference which may be drawn from the evidence produced. The testimony of the salesman is that in reliance upon what Meyer told him he sent in the order and recommended the sale. The statement of Meyer was false; and it appears that, but for this false statement made in denial of his being financially embarrassed, Meyer would not have obtained the goods. We hardly understand how the fact that plaintiffs had a man who passed upon the sales upon credit, can affect the question. It is no more than .if they had acted in that capacity themselves.

II. If it should appear from the whole evidence, to the satisfaction of the triers of the facts, that no reliance was placed by plaintiffs on Meyer’s statement or representation as to his financial condition then, of course, the representation, having no operative effect, can not be fraudulent. But the fact that there may have been other causes in connection with Meyer’s statement (such as mercantile agencies) impelling plaintiffs to ship the goods does not defeat plaintiffs’ case, if the false representation of Meyer was one of the causes without which the shipment would not have been made. Cahn v. Reid, 18 Mo. App. 131-135.

Ill An instruction for the defendant directing the jury to fix the value of the property at the time it was replevied was erroneous. The value at the time of the trial is the proper valuation. White v. Storms, 21 Mo. App. 289; Hoester v. Teppe, 27 Mo. App. 210.

IV. Any admission of Meyer while in possession of the goods as owner which tends-to show he had no valid title as against plaintiffs is proper evidence. This is true, notwithstanding the parties now in interest against plaintiffs are the attaching creditors who have laid hold of the goods through the defendant sheriff. These creditors must abide by the title Meyer had, there being no pretense that their debts were contracted on the faith of this property.

The judgment is reversed and the cause remanded.

All concur.