33 Mo. App. 426 | Mo. Ct. App. | 1889
delivered the opinion of the conrt.
• This is an action of replevin, brought by the respondent in the circuit court of the city of St. Louis, on • the twelfth day of October, 1886, to recover from the defendant Adolph Lederer, and the appellant Samuel Van Ttaalte, the possession of a lot of gloves, of the alleged value of three hundred and twelve dollars. The respondent gave bond, and the property, as shown by the return of the officer, was taken from the possession of defendants and delivered to the respondent. The defendant Lederer failing to appear, judgment by default was entered against him.
Appellant’s testimony tended to show that, on the second day of October, 1886, the appellant bought a stock of goods from his co-defendant Lederer, who was at that time, and for several years previous had been, engaged in a retail business on Chouteau avenue in the city of St. Louis; that the gloves in controversy were a piart of the stock of goods, and were included in appellant’s purchase. The inventory or appraisement of the stock of goods amounted to something over eleven thousand dollars, for which appellant agreed to, and did pay, sixty-five cents on the dollar; that the respondent was engaged in the manufacture of gloves in the state of Illinois ; that in August, Lederer had given respondent’s agent an order for the gloves incontroversy, and that, in pursuance of this order, the gloves were shipped to the city of St. Louis, and delivered to Lederer at his place of business on the said second day of October, 1886.
At the beginning of the trial, appellant Van Raalte made the following admission, to-wit: “ The defendant Van Raalte, for the purposes of this trial, admits that the goods described in the petition were bought by Lederer of plaintiff on August 6, 1886, and delivered to Lederer October 2, 1886, payable in ninety days from that date, and further that Lederer, when he purchased
Appellant complains of the instructions given, and the refusal of the court to give other instructions asked by him, and also that incompetent and illegal testimony was admitted against his objection. It would be better to dispose of. the latter question first. Appellant complains of the testimony of David, Goldsmith, who was introduced as a witness.by respondent. Goldsmith was permitted, against appellant’s objection, to' testify to a conversation between himself and Julius Van Raalte, the step-father of appellant. The substance of Goldsmith’s testimony was, that ;he represented some of Lederer’s creditors ; that, .on the.sixth day of October, the day on which the appellant claims that the inventory was completed,, and he had paid for the goods,
The other objection urged by appellant against the admissibility of the. testimony, we don’t think can be maintained. Even if the testimony of Goldsmith did contradict that of the defendant Lederer, ■ wh® was sworn as a witness by respondent, yet it .is competent. The respondent under the rule would only have been precluded from attacking the character of Lederer as a witness, or that Lederer had made statements out of court contradictory of his testimony. Respondent was at perfect liberty to show by other and competent testimony that any statement made by his witness Lederer was not true. We think that this testimony in any view of the case was admissible. The court on its own motion instructed the jury, in effect, that, under the admissions made by appellant, the purchase by Lederer of the goods in controversy was a fraud, and that the burden of. proof was on appellant to show that he bought the goods from Lederer and paid a valuable consideration for them ; that- if these facts were shown to the satisfaction of the jury, then it devolved on respondent to show, ■ either that appellant knew of Lederer’s fraud, ¡in the purchase, or that thefacts and circumstances surrounding the case were such that a man of ordinary prudence and caution would have suspected the fraud, and been put upon inquiry.
The first instruction asked by the counsel for appellant and given by the court was as follows : “ 1. The court instructs-the jury that if they believe from the evidence that defendant Van Raalte, on October 6,1886, for a valuable consideration, bought from Lederer and took possession thereof his stock of goocjs, including the gloves involved in this suit, they will find a verdict for defendant, unless they find from the evidence that
Appellant complains, (1) “That the verdict is not only contrary to all the evidence, but is supported by no evidence whatever.” (2) “ That, as there was no evidence tending to .show that appellant had reason to suspect that Lederer had bought the goods in controversy with no intention of paying for them, and as there was no testimony tending to disprove the fact of the actual purchase by appellant, that the instructions refused should have been given.” There is no rule of law more firmly settled in the practice of this state than that “the jurors are the sole "judges of the credibility of witnesses, and the weight of evidence”; but by this it is not meant that a jury is authorized to return a verdict that is unsupported by any substantial evidence. This court, in case of Lionberger v. Pohlman, 16 Mo. App. 392, laid down this rule : “That where the testimony offered in support of the allegations of the party who sustains the burden of proof is, if believed, sufficient to make out his case, and is clear, consistent with itself,
The instructions given on motion of the respondent were substantially correct. The court told the jury that they were not bound to accept as true a statement of fact made on the witness-stand, if, from all other facts
Lastly, it is urged by counsel for the appellant that the judgment is a joint one, against appellant and defendant Adolph Lederer ; that the undisputed testimony was that appellant was in the exclusive possession of the goods, and that the cause ought to have been dismissed as to Lederer. Lederer made no defense, and judgment by default was taken against him. Lederer alone (if any one) was prejudiced by the form of the judgment. Lederer is not before this court, and appellant cannot complain for him. Appellant filed his answer asserting that he was the owner, and at the time of the service of the writ was in the exclusive possession of the property replevied; there was no reply filed. Appellant contends that upon this state of facts, the suit ought to have been dismissed as to Lederer. The answer to this is, that the record does not show any attempt on his part, or that of Lederer, to have the suit dismissed as to the latter.
The judgment is affirmed.