96 Mo. App. 327 | Mo. Ct. App. | 1902
This suit originated in a justice’s court, where trial was had, appeal taken to the circuit court of the county, where on trial anew the plaintiff recovered judgment, which the court on motion for a new trial set aside. From this action of the court in setting said verdict aside, the plaintiffs appealed. The action is replevin, to obtain the possession of fifteen hogs, of which, it is alleged, the plaintiffs were the owners, and which the defendants unlawfully withheld. It appears that the parties to the suit are stock-shipping firms doing business at Spickards, Grundy county, Missouri; that on September 2, 1901, J. N. Sires, acting for plaintiffs, went to the farm of one Richard Bain, some distance from said town, and contracted with said Bain, the owner, in behalf of plaintiffs for said hogs at the price of $5.37 1-2 per hundred weight, said Bain agreeing to deliver them on September 14, next, at the stockyards of the Rock Island railroad in said town of Spickards. At the time of the said agreement, these particular hogs were selected by
One contention of the defendants is, that as there was no writing evidencing the agreement between Bain and the plaintiffs, signed by the parties, and no money paid, the value of the animals in dispute being over $30, the plaintiffs were not entitled to recover, j If the acts of the parties constituted a sale at law, the transaction was not void, but only voidable at the election of the party to' be charged. Aultman v. Booth, 95 Mo. 386; Maybee v. Moore, 90 Mo. 343. “And it may also be said that as the statute of frauds affects only the remedy of the party sought to be charged; its benefits can not be claimed by one who is not a party to the contract and is not sought to be charged thereby.” Railway v. Clark, 121 Mo. 169.
, But we hold that the defendants are not within the above rule, for the reason that their vendor, Bain, vdded the contract in the first instance by refusing to let plaintiffs have the hogs in dispute. It would be
But it is contended by plaintiffs that, independent of all these questions there was an actual delivery of the goods. It is conceded that a contract was made between Bain and plaintiff in reference to the hogs, and their identity ascertained. The only point to deter
The facts in that case were “the price (per head) and the number of cattle were agreed upon, and they were to be driven by the plaintiff to Dresden, a station on the Pacific railroad, and delivered into the cattle pens at that place on the last of September, and they were driven by plaintiffs’ agent to Dresden and put into the stockpens on that day, but there was nobody there to receive them on behalf of the defendants, and they were driven away again to a herding place by the same agent.” The court held that there was no delivery, no actual change of possession, that, ‘ ‘ a delivery of possession necessarily implies a change of dominion and control over the property.” Here the hogs were delivered at the stockyards as agreed, but there was no one there at the time to weigh and receive them, and when one of the plaintiffs came to receive them, the vendor refused to deliver them to him. Bain never parted with his possession of the hogs, but held control
Cause affirmed.