33 Mo. App. 69 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This was an action for damages for the conversion of nine tubs of butter. The action was commenced before a justice of the peace. On trial anew in the circuit court, without a jury, the plaintiff had a judgment, from which the defendant prosecutes this appeal. No exceptions were saved to rulings upon the evidence and no instructions were asked or given. In such a state of the record, if the judgment is one which can be sustained under any theory consistent with the evidence, it must be affirmed. The plaintiff’s evidence showed that on Friday, the eighth day of July, 1887, the plaintiffs were the creditors of one Klasing to the amount of $181.83; that a part of this indebtedness was for ten tubs of butter which Klasing had purchased of them on the tenth of June preceding; that nine .of these tubs were on store for Klasing in the cold storage-room of the defendant’s brewery. There was no evidence tending to show that the defendant had any right of property in them or any lien upon them. On the eighth of July the plaintiffs, desiring to obtain from Klasing security for their debt, submitted their account to him and procured him to endorse on the back of the same the following : 7-8-87. — Roeder Bros. Gents.: — Out of the 10 tubs of butter you sold me on June 11, ’87,1 still have on hand 9 tubs which are at the Green Tree Brewery Co’s. cellar, and which nine (9)1 hereby re-transfer to you as collateral security for this bill of $181.33. Fred Klasing.”
The plaintiffs’ evidence was also to the effect that on the following Monday, July 11, their attorney called on the defendant and informed its president that the nine tubs of butter belonging to Klasing, which the defendant had on store, had been transferred by Klasing to the plaintiffs and that they desired to have the
Section 2505, Revised Statutes, applies neither to
It is argued that, because the plaintiffs in the notice of claim which they filed under the sheriff and marshal’s act, describe their title as that, of mortgagees, thus inducing the defendant to give bond in consequence of such representation, they are now estopped to set up any other kind of title. We do not see any element of an equitable estoppel in the case. We have said that the plaintiffs were pledgees, and we have seen that the defendant was tendered full notice of their title before the indemnifying bond was given.
The judgment will be affirmed.