39 Mo. 222 | Mo. | 1866
delivered the opinion of the court.
The following general statement of the case will show the points presented for the consideration of the court.
The defendant Cogdal being in possession of a certain quantity of staves, the plaintiffs, claiming to be the owners, commenced suit therefor in the Court of Common Pleas for
There was no farther attempt to collect the amount of the order, or to procure Meyer’s signature to the note, but the staves were resold to the plaintiff in this suit; Cogdal in the meantime got possession of the staves and shipped them to St. Louis, where they were taken out of his possession by legal process. The real question for the jury was whether there was such a sale and delivery to Cogdal as to transfer to him the ownership of the property. We think it was fair
The instruction given at the instance of plaintiffs very fairly presented the question of the ownership of the staves at the time Cogdal took possession of them. It made no difference whether the plaintiffs claimed by purchase made in their own proper person or by agent, and the giving of the instruction based upon the theory of their purchase through an agent could really have made no difference in the finding of the jury. Two of the instructions asked by plaintiffs and refused were drawn upon the theory that the counting of the staves and an actual delivery were necessary to complete the sale ; they were manifestly improper. The testimony in relation to the counting of the staves tended to show that that was necessary only to ascertain how much would be due upon the note. The jury were told that a sale of personal property was good, notwithstanding there was no actual delivery, if anything had been paid to bind the bargain.
Another instruction, designated in the bill of exceptions as number 4 of the series asked by plaintiff and refused by the court, is not very intelligible ; but the idea seems to have been that the goods sold to the holders of the note, in order to bind the bargain for the staves, must have been accepted upon an express agreement for that purpose. But the other instruction given for the defendant sufficiently covered this point, and in a more intelligible form. The last was in reference to the measure of damages. It asserted the rule to be upon a finding for the defendant, that his damages must be estimated at the difference between the price at which he had contracted for the staves and the price in the St. Louis market at the time they were sold. The court committed no error in refusing this instruction.
However, the measure of damages was not correctly stated in the instruction given for the defendant, and the case must
Another point in reference to the admission of improper evidence is raised by the appellants’ brief, but will not be considered because the bill of exceptions fails to state the grounds upon which the testimony was objected to at the time of trial. It has been uniformly held by this court that such objections must be specifically shown by the record to entitle them to any consideration here.
For the reasons above stated, the judgment of the court below will be reversed and the cause remanded.