65 Mo. App. 174 | Mo. Ct. App. | 1896
This is an action to recover the possession of one hundred and forty-one pieces of piling. The property was taken from the defendants, and delivered to the plaintiff. The suit was instituted in the circuit court of Wright county, and was taken by change of venue to the circuit court of Webster county, where it was tried. The trial resulted in a judgment
This is the second appeal in this case (56 Mo. App. 683). Both parties claim title to the piling under Kirk and Liggett. The latter were merchants in the town of Norwood in Wright county, and, in addition to their mercantile business, they were buying and •selling piling, posts, and lumber. On the first trial the plaintiff claimed that Kirk had bought the piling as its agent; that in the latter part of July, 1890, Mr. Trimble, a member of the plaintiff firm, went to Norwood and paid Kirk for it; that subsequently, but prior to the institution of this suit, to wit, August 5, 1890, Mr. Good, another member of the firm, went to Norwood and branded each piece of piling with the letter “T,” and that he left the property on the side of the railroad track in charge of no one. The defendants claimed title under a chattel mortgage executed by Kirk and Liggett on the twenty-sixth day of June, 1890, in which the property was described as “all posts (about 7000), piling, and lumber, belonging to us (Kirk and Liggett), and lying near the railroad track in the town of Norwood.” It did not appear at that trial whether the chattel mortgage had been recorded or not, but the evidence tended to show that the defendants took immediate possession of the piling and put it in charge of an agent, and posted up a notice on the piling to that effect. We reversed the judgment, which was for the plaintiff, because there was no evidence that Kirk had bought the piling as its agent. On the last trial the plaintiff amended its
The instruction which the court gave, and of which the defendants complain, is as follows: £<If you believe from the evidence that plaintiff had bought and paid for the property in controversy before the execution of the trust deed read in evidence, then the plaintiff is entitled to recover in this action, unless you further believe from the evidence that defendants were in possession of the property in controversy under the trust deed read in evidence.” This instruction ignores the plaintiff’s evidence as to the branding of the piling, and the court'was evidently of the opinion that it was insufficient to establish such a change of possession as the statute contemplates. In fact, the court so instructed at the instance of the defendants. The fact that the defendants’ mortgage was recorded is also ignored in the instruction, and was evidently considered by the court as of no consequence. Hence the theory of the instruction is that, as the alleged sale was good without delivery, as between the plaintiff and Kirk and Liggett, the defendants’ subsequently acquired title' under the mortgage could only prevail, provided they took actual possession of the
In Stewart v. Nelson, 79 Mo. 524, the interpleader claimed to have purchased a lot of railroad ties from
The lowest value placed upon the piling by plain