75 Mo. App. 386 | Mo. Ct. App. | 1898
This is an action of replevin to recover the possession of a lot of lumber. The property was taken from the possession of the defendant, who as constable had seized it under three executions against
“Witnesseth that said Russe & Burgess hereby agree to purchase of said King 120,000 feet of first and seconds plain red oak, and 80,000 feet of common plain red oak, to be sawed as Russe & Burgess may direct.
“It is mutually agreed between the parties that the above lumber shall be inspected by the Cairo rules of inspection.
“It is agreed and understood that after the stacking and inspecting or estimate and payment of $11.20 and $3.20 per thousand feet as aforesaid, that the title to all of said lumber so estimated and paid for immediately and absolutely vests in Russe & Burgess, free from all liens, demands and claims of all persons whomsoever.
“It is hereby further agreed that the said King shall pay interest at 8 per cent per annum on all moneys paid, from time paid up to time the said lumber is removed. * * * Upon the removal of said lumber Russe & Burgess shall pay in cash to King all money due for sale of lumber or services rendered in loading the same, less 2 per cent for cash.
“The total amount to be paid for the lumber and loading the same shall be $16 for firsts and seconds, and $8 for commons per 1,000 feet.”
In defense of his right to hold the property the defendant introduced evidence tending to establish these facts: King was operating a saw mill. He bought timber from Martin Brothers of the value of $79, Furlong Brothers of the value of $175.57, and Rhinehart of the value of $66.70, and that the judgments upon which the executions were issued were obtained upon these claims. The logs furnished by these parties, as well as those sold to King by others, were hauled to the mill, sawed into lumber, and the lumber intermingled and stacked together. Some of the lumber
The cause was submitted to the court without a jury. No instructions were asked or given and no exceptions saved as to the evidence. The- court found the issues for the defendant. It found the value of the property to be something less than the amounts due under the executions and it entered the usual statutory judgment for the return of the property or the payment of its assessed value if the defendants should so elect. The plaintiffs have appealed and urge that under the conceded facts the judgment ought to have been for them.
With the concurrence of the other judges, the judgment of the circuit court will be reversed and the cause remanded. It is so ordered.