45 Mo. 524 | Mo. | 1870
delivered the opinion of the court.
The plaintiff sues in replevin to recover possession of certain personal chattels which the defendant, as sheriff, had levied upon and taken into his custody as the property of one Julius Rapp.
Among other instructions given at the instance of the defendant was the following: “If the jury believe from the evidence that Julius Rapp, at the time of the levy of the execution, was the owner of, or had any interest in, the profits to be realized from the sale of the goods, the jury should find the issue for the defendant, although they may also believe from the evidence that the business and store was carried on in the name of William Rapp.” This instruction is justly complained of as erroneous and misleading. The plaintiff may have been the owner of and entitled to the possession of the goods, as is averred in the petition, notwithstanding Julius Rapp’s supposed interest in the profits of sales. The two things are not necessarily inconsistent. The instruction authorized the jury to found their verdict upon an entirely immaterial issue. Besides, there was no testimony tending to show that Julius Rapp had an interest in the profits of sales, apart from his interest in, or ownership of, the goods themselves. If Julius Rapp had any interest in the store, so far as the testimony tends to show, it was either as a partner or sole owner. If Julius Rapp was either a partner or sole owner, his interest was subject to seizure by his private creditors. If a partner, the measure and value of his interest could be ascertained and determined in the trial of the replevin suit. (See Grillham v. Kerone, ante, p. 487.)
The judgment of the Circuit Court at general term, reversing the judgment of the court at special term, is affirmed.
