Porth v. Lux

40 Mo. App. 162 | Mo. Ct. App. | 1890

Gill, J.

This is an action for the amount alleged to have been paid defendant by the plaintiff for a Domestic sewing, machine. The case originated, and was tried, before a justice of the peace in Miller county, was appealed to the circuit court, where, on trial before court and jury, a verdict and judgment was had for the defendant and plaintiff has appealed.

Porth is a merchant at Jefferson City, and had the exclusive agency for the sale of the Domestic sewing-machine in Miller county, and by agreement the price of the machine to be sold by plaintiff was fixed at forty dollars. In the conduct of the business plaintiff came to the knowledge of the fact that defendant Lux, residing in Miller county, had purchased from some one a “Domestic” machine, and at the price of thirty-five dollars. Plaintiff thereupon complained to the company, his principal; and upon the denial.that any such sale had been made by the company, plaintiff negotiated with defendant for the purchase of said machine, resulting in plaintiff acquiring the same in consideration of another machine and ten dollars paid defendant. After thus securing the Lux machiné it was found to have been stolen from Wood & Co., dealers in St. Louis, and to the rightful owners plaintiff surrendered the said machine. Defendant refused to return to plaintiff the purchase price thereof, whereupon this action was brought.

At the trial in the circuit court, various instructions were given, and which in the main fairly declared the law governing the case. Instruction number 3, however, given at the instance of the defendant, was entirely outside the substantial issues of the case, and ought not to have been given. Said instruction reads as follows: “3. If from all the facts and circumstances in the case as developed by the evidence the jury believe that the plaintiff máde the trade with defendant for the purpose and with the design_ to either prove his truthfulness to the company he was agent for, or for the purpose of entrapping and detecting his principal in selling inside of territory allotted to him to sell in, then they will find the issues for the defendant.” What had the matter of this instruction to do with the defense of this suit ? Take it as true that plaintiff bought the machine with the view of convincing his company that his territory was being invaded, did such a purchase deprive him of the rights of an ordinary purchaser for value \ The vicious nature of this instruction is too plain for extended comment, and doubtless furnishes a solution for this extraordinary verdict, which, on the face of this record, appears very clearly for the wrong party. Judgment reversed and cause remanded for a new trial.

All concur.