51 Mo. App. 252 | Mo. Ct. App. | 1892
This is a suit brought by the relator against the defendant Sitlington, sheriff of Jackson county, and the sureties on his official bond, to recoyer damages for a breach thereof, arising out of the alleged action of the defendant sheriff in wrongfully taking away from relator a certain stock of goods under a writ of attachment against one Samuel Lederer. There was a trial and judgment for defendants, to reverse which plaintiff has appealed.
The relator here questions the propriety of the trial court in the giving of the first of the defendants’ instructions, which directed the jury, “that if you believe from the evidence that House at the request of Richter released Gi-utfreund from liability on his notes and took the individual note of Lederer, and a chattel mortgage on the goods sued for to secure it, and at the request of Richter withheld said chattel mortgage from record, under a promise or agreement from Richter
The special. defense pleaded in the answer, and controverted by the replication, was to the effect, “that prior to January, 1890, said Lederer and one Samuel Gutfreund were partners in said business and had borrowed money from said E. L. House, for which said Lederer and Gutfreund had executed their notes to said House; that said Lederer was desirous of buying his said partner’s interest in said business, and to enable him to do so it was necessary that he should arrange with said House to release said Gutfreund from liability on said notes'; that in order to induce said House to release said Gutfreund from liability on said notes the plaintiff Moritz Kaufman, through his agent in that behalf, Gustav Richter, promised and agreed with said House, that if said House would release said Gutfreund so that the purchase of the interest of said Gutfreund in said business could be affected by said Lederer, that said Richter would cause said Lederer to execute to said House a chattel mortgage on the property in said store, which would be a first lien thereon, and that said Lederer would not execute any mortgage or conveyance of said goods so as to interfere in any manner with the mortgage of said House, and the said House relying upon the promise and agreement of said Richter, who was acting for and in behalf of
It is, therefore, manifest that the theory of the instruction widely varies from that of the pleadings. The issue thus presented for the determination of the jury was entirely outside of that of the pleadings. The rule of practice is well settled in this state that instructions must be restricted within the limits of the issues made by the pleadings. -Under our system of practice and procedure, it has always been regarded as error for a court by an instruction to change the issues made by the pleadings. Such an error stands condemned as fatal by a long and unbroken line of appellate decisions in this state. Wright v. Fonda, 44 Mo. App. 634; George v. Railroad, 40 Mo. App. 433; Moffatt v. Conklin, 35 Mo. App. 455; Iron Nat. Bank v. Murdock, 62 Mo. 73; Fulkerson v. Thornton, 68 Mo. 469; Nugent v. Curran, 77 Mo. 328; Hassett v. Rust, 64 Mo. 328; Crews v. Lackland, 67 Mo. 621; Lenox v. Harrison, 88 Mo. 495; Waldhier v. Rail road, 71 Mo. 516; Merrett v. Poulter, 96 Mo. 240; Nall v. Railroad, 97 Mo. 74; Bender v. Dungan, 99 Mo. 130.
The relator’s contention that the theory of the defendants’ fourth instruction, telling the jury, in substance, that the burden of proof as to the alleged
If the pleadings had justified the theory it asserted, would it have been proper, is a more serious question which we must decide. The rule, that the knowledge of the agent affects the principal, as applicable, not only to knowledge acquired during the continuance of the agency, but such as was acquired so shortly before it began, as, necessarily, to give rise to the inference that it remained fixed in the mind of the agent during his employment, obtains in this and many other jurisdictions (George v. Railroad, 40 Mo. App. 434; Chouteau v. Allen, 70 Mo. 290; Maywood v. Ins. Co., 52 Mo. 181;
Now, if we concede the existence of this rule, can the defendants’ instruction be approved? As we have seen it declares that Richter’s knowledge that Lederer had executed to House a mortgage on his stock of goods to secure a debt, and that the .mortgage had not and was not to be recorded under an agreement entered into between Richter, Lederer and House, was notice to relator of that fact when Richter became his agent for transaction of the mortgage by him with Lederer, and that the notice thus imparted to him would operate as an estoppel upon relator’s right to claim the goods under his mortgage, though it was recorded, and he was in possession of the goods thereunder at the time of the levy of the attachment. Would it be different if Richter had not been relator’s agent, and relator had taken the mortgage himself, and had been placed in possession by the mortgagor? Suppose that, before relator took the mortgage, or went into possession, Lederer or House, or both of them, had notified him of the agreement between Richter, Lederer and House, and that the mortgage executed by Lederer to House in pursuance of such an agreement was unrecorded, would such knowledge or notice have rendered the mortgage of relator, if executed in good faith, invalid, or constitute an estoppel in pais? We think not. A mortgage or deed of trust of personal property is not valid against any other person than the parties thereto, unless possession of the mortgaged or trust property be delivered to and retained by the mortgagee or trustee
Notice of the existence of an unrecorded mortgage to one who, in good faith, takes a second, which is properly recorded, and who is placed in possession of the property covered by it, cannot, therefore, be made available as the ground work of an estoppel upon the rights of such second mortgagee. Was House in any way misled or deceived by the act of relator in taking the mortgage? The hypothesis of the instruction embraces no such- an element. The courts all concur in this, that no man can set up another’s act or conduct as the ground of an estoppel, unless he has himself been misled or deceived by such act or conduct. Bales v. Perry, 51 Mo. 449; Spurlock v. Sproule, 72 Mo. 563. Tested by this rule, it is plain that the theory of the instruction is faulty in an essential particular. In any view that we have been able to take of it, we think it was erroneous, and should not have been given.
We have examined the several instructions which the court declined to give for the relator, and find no error in that regard.
The instructions given are all well enough, with the exception of the defendant’s first, and but for the giving of which we would not disturb the judgment.
It results that the judgment will be reversed and the cause remanded'.