74 Mo. App. 446 | Mo. Ct. App. | 1898
— This is an action of replevin which was brought to recover ten barrels of linseed oil. The plaintiff had judgment and defendant has appealed.
It is true that the plaintiff’s first instruction had told the jury that if Lindley had sold the goods to defendant in good faith and for a valuable consideration ivithout knowledge on the part of the defendant of the fraud of the former or without such facts coming to its knowledge as would put a man of common sagacity, care and prudence on his inquiry in regard thereto, yet this does not cure the error in the plaintiff’s third instruction. It is a well established rule of practice that where an instruction states the law upon a material point correctly and another instruction states it incorrectly the judgment will be reversed, since it can not be known whether the jury followed the correct or-incorrect instruction. Mannheim v. Harrington, 20 Mo. App. 297; Berryman v. Cox, 73 Mo. App. 67.
This instruction might with propriety be regarded as harmless if it were not a sharply controverted
The judgment is assailed on other grounds which have been considered and found untenable.
On account of the errors already mentioned the judgment will be reversed and cause remanded.