62 Mo. App. 418 | Mo. Ct. App. | 1895
Plaintiffs replevied certain goods sold by them to defendants as composing the firm of Buhler & Company on the theory that defendants, knowing of their insolvency, had bought the goods without any intention of paying for them and had induced the sale by fraudulent misrepresentation. The case was tried in the justice’s court and judgment given for defendants, from which it was appealed to the circuit court where defendants had judgment, and plaintiffs appealed.
On the trial the evidence tended to show that plaintiffs gave credit for the goods in question solely upon their faith in certain misrepresentations of the solvency of the firm, made to the commercial agencies and communicated to plaintiffs; that, at the time of the sale to the defendants of the first bill of goods in dispute, defendant Osborne was a member of the firm; that soon thereafter he retired, of which plaintiffs had no actual notice, and took a mortgage from his eodefendant to indemnify him against loss for certain partnership claims mentioned therein, not including that of plaintiff, and to secure an individual claim; that under cover of this shortage defendant Buhler ran the store
This case was tried by the court without a jury. The errors complained of are the refusal by the court of "eight declarations of law requested by plaintiffs. None. of. these requests were drawn with sufficient accuracy to state the correct rules of law applicable to the different phases of the case presented by the evidence. The fault in one of them (No. 8) was, however, informal. .The court should have given the substance of this instruction. . By. it the court was asked to declare the law to be that' a purchase of personal property on credit by an insolvent,, procured by fraud or with no intention of paying for it, may be avoided by the vendor by' a seasonable rescission, which will prevail against the .possession. of third persons holding such property with notice of the infirmity in the title of thé buyer. There was, evidence .in this case tending to, show that the' mortgagee knew the goods replevied
These two theories were fairly presented by the •evidence, and should On a retrial be covered by proper ■declarations of law. The circuit court was bound also upon the request of plaintiffs, on a trial before it without a jury, to state in writing the conclusions of, facts found separately from the conclusions of law. Revised Statutes, 1889, sec. 2185. We presume this was not done in the present case, because the record does hot -show such request.
For the foregoing errors, the judgment herein will be reversed and the cause remanded.