68 Mo. 218 | Mo. | 1878
The judgment is sought to be reversed in this case on two grounds, first, because it was not in accordance with the statute ; second, because of the refusal of the court to give instructions asked by plaintiff numbered one, six, eight and ten. The action is for a specific recovery of a stock of goods, which were invoiced to defendant Heidel, by defendant Graves, at $1,900. The evi
It is argued that under Wag. Stat., secs. 11,12 and 15, p. 1026, the judgment should have been that plaintiff’ return the property taken or pay the assessed value thereof, at the election of defendant, and that this election could only be made by him when the property was delivered to the sheriff. We think the form of the judgment can be'uphekl under the authorities of the case of Dilworth v. McKelvy, 30 Mo. 149. Besides this, we cannot see how the plaintiff, in the light of the facts of the case could possibly be injured by the action of the court in allowing defendant to elect to take judgment for the assessed value of the property. It is shown by the evidence of plaintiff himself that he sold the goods in controversy after receiving them under the writ for $1,486, nearly $450 in excess of their value, as ascertained by the court. He cannot, therefore, be heard to complain. While in actions of this character under section 15, supra, a party shall not be required „to make his election whether he will take the property or its assessed value till it is delivered to the sheriff, yet if he choose to give up a privilege, and make such election, we can see no reason why he should not be allowed to do so, especially in a case like this, where the evidence shows that it is out of the power of the opposite party to return the property.
We cannot perceive the relevancy of the point0 presented in the sixth instruction to the question in issue. It matters not whether the money paid to Qraves was the separate property of Davina A. Heidel, or the purchase of the goods was to her use. It could neither strengthen plaintiff’s case nor weaken the
The eighth instruction may well have been refused on the ground that if White had no valid lien on the goods tlie declaration of Guillett, the auctioneer, could not confer one.
The second instruction having submitted the question of the good faith of Heidelin lending the money to Graves and taking the mortgage to secure its payment, affords a sufficient reason for refusing the tenth declaration. It might also have been refused on the ground that plaintiff did not stand before the court as a creditor, but as one basing his right to recover on a mortgage void as to creditors. Discovering no error, the judgment is affirned,
Affirmed.