Wren v. Kuhler

68 Mo. App. 680 | Mo. Ct. App. | 1897

Ellison, J.

This is an action of replevin for a lot of hogs. Plaintiff recovered in the trial court. The hogs are the same that were in controversy in the case of Kuhler v, Tobin, 61 Mo. App. 576. Tobin owned the hogs and had sold them to defendant Kuhler, to be delivered at a future time. As it appeared in the case of Kuhler v. Tobin, the former had demanded the hogs •of the latter, but the latter did not deliver and was in the act of disposing of them or driving them away when the former replevied them and received possession of them from the sheriff. Thereupon this plaintiff instituted the present action of replevin against Kuhler, claiming that he was the owner of the hogs and in possession of them under a purchase from Tobin when Kuhler replevied them in the other case.

S^resaie• Scienter!' .There was evidence tending to show, and since the verdict was for plaintiff we will assume it is a fact, that though plaintiff knew there had been a sale and agreement to deliver between Tobin and Kuhler yet that the latter had repudiated the transaction and refused to take the hogs of Tobin, and that after Kuhler’s refusal this plaintiff bought the hogs of Tobin, and was in possession of them, driving them to a pair of scales to be weighed, when they were taken by Kuhler under his replevin suit against Tobin. The court, in effect, instructed the jury that although Kuhler may have bought the hogs of Tobin for future delivery, and that plaintiff knew it, yet if the jury believed that Kuhler afterward repudiated the contract and refused to take the hogs, that plaintiff had a right to buy them of Tobin. In our opinion this direction to the jury was correct.

~aym“m.ssion: II. But plaintiff, though in possession, had not paid anything to Tobin when Kuhler took them under his replevin against Tobin. Plaintiff had, however, agreed with Tobin on the price per pound and was taking the hogs to the scales for weighing, so as to ascertain what sum would be due Tobin under the terms of the sale. This was sufficient to vest, title in plaintiff. Cunningham v. Ashbrook, 20 Mo. 554; Hamilton v. Clark, 25 Mo. App. 428; Toney v. Goodley, 57 Mo. App. 235.

AdceMnsTt™?tfoñmvued error. Some of defendant’s instructions should not have been given since they omitted hypotheses which should have been included, but those given for plaintiff were correct and defendant can not complain of error in his own favor invited by himself. The judgment must be affirmed.

All concur.