28 N.W. 492 (Iowa 1886), Brady v. Flickinger

Citation:28 N.W. 492, 69 Iowa 167
Opinion Judge:SEEVERS, J.
Party Name:BRAY v. FLICKINGER ET AL
Attorney:Smith, Carson & Harl, for appellant. Flickinger Bros. and Jacob Sims, for appellees.
Case Date:June 17, 1886
Court:Supreme Court of Iowa
 
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Page 492

28 N.W. 492 (Iowa 1886)

69 Iowa 167

BRAY

v.

FLICKINGER ET AL

Supreme Court of Iowa, Des Moines

June 17, 1886

Appeal from Pottawattamie Circuit Court.

ACTION to recover specific personal property, consisting of a stock of boots and shoes. The defendants pleaded that one Skiles was the owner and in possession of the goods in controversy; that he advertised the same as his property, and as such was engaged in selling the same; and that, being such owner, and in possession of the goods, Skiles executed a mortgage thereon to one of the defendants, and, default having been made in payment of the amount secured by the mortgage, the defendants had taken possession of the goods thereunder. Trial by jury. Judgment for the defendants, and the plaintiff appeals.

REVERSED.

Smith, Carson & Harl, for appellant.

Flickinger Bros. and Jacob Sims, for appellees.

OPINION

[69 Iowa 168] SEEVERS, J.

I.

The plaintiff introduced evidence tending to show that he was the owner of the goods in controversy, and that the defendant Flickinger had knowledge of such fact at the time he took the mortgage under which he claims of Skiles; and the defendants introduced evidence tending to show that Skiles was in possession of the goods, using and controlling them in all respects as his own; that the plaintiff had knowledge of this fact; and that under such circumstances the defendant Flickinger took a mortgage on the goods of Skiles to secure an indebtedness actually due him. The plaintiff asked the court to instruct the jury as follows: "If you find from the evidence that the plaintiff was, at the time of the taking of the chattel mortgage in controversy, the owner of the property in controversy; and that the defendant A. T. Flickinger had, at the time of taking said mortgage, actual notice or knowledge of the ownership of plaintiff, the defendant will be thereby estopped from claiming any interest in said property adverse to the plaintiff by virtue of said mortgage." This instruction was refused. It, or one embracing the same legal thought, should have been given.

Counsel for the appellees contend that the plaintiff is estopped from claiming the goods, although he owns them, because he permitted Skiles to use, control,

Page 493

and hold himself out to the world as the owner thereof. Possibly this would be so...

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