Blow v. Spear

• Decision Date: 31 March 1869
• Citation: 43 Mo. 496
• Parties: HENRY T. BLOW, Adm'r of PETER E. BLOW, Respondent, v. WILLIAM SPEAR et al., Appellants.
• Court: Missouri Supreme Court

43 Mo. 496

HENRY T. BLOW, Adm'r of PETER E. BLOW, Respondent,

v.WILLIAM SPEAR et al., Appellants.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

This was an action brought by the administrator of Peter E. Blow, deceased, to recover back certain money paid by mistake of intestate. Judgment was rendered in favor of plaintiff, in the court below, for $248.50.

For a general statement of the case, see opinion of the court.Hunton, Moss & Sherzer, for appellants.

Plaintiff's first instruction was improper. It made a particular phrase--“to be paid for when sold”--positive and absolute proof of a delivery on commission, withholding from the jury the consideration of all other evidence tending to throw light upon the transaction and to indicate the true meaning and agreement of the parties, and, by giving undue prominence to this particular expression, misleading the jury. (Clark v. Hammerle, 27 Mo. 70; Chappel v. Allen, 38 Mo. 221-22; Meyer v. Pacific R.R., 40 Mo. 154-55; Hovey v. Pitcher, 13 Mo. 201; Mead v. Brotherton, 30 Mo. 202; Anderson v. Kincheloe, 30 Mo. 525; 3 Barb. 69; 14 Johns. 168-69.)

Geo. P. Doan, for respondent.

CURRIER, Judge, delivered the opinion of the court.

The defendants agreed to furnish the plaintiff's intestate with tobacco, of a certain grade and at a fixed price per pound, for resale by the latter. The plaintiff's testimony tended to show that the tobacco was to be paid for “when sold” by the purchaser. The defendants' testimony tended to show that payment was to be made “at the end of the month” in which the tobacco was delivered, and, if not resold by the purchaser at that time, that payment might be deferred another month. Under this arrangement the defendants delivered to the plaintiff's intestate 940 pounds of tobacco, at the agreed price of one dollar per pound. Sales of it were made by the latter amounting to $318, when his store took fire and was consumed, and the residue of the tobacco was thereby destroyed. At a subsequent date his book-keeper paid the defendants the full $940 in settlement of the account, not being aware, as the plaintiff claimed, of the real nature of the purchase. This suit is brought to recover the alleged over-payment of $622, being the difference between $940 and $318.

On the trial, the court, at the instance of the plaintiff, instructed the jury to the effect that the “transaction between the parties did not constitute a sale,” and the property would remain at the risk of the defendants in case they should find that the purchase money agreed on was to be paid, under the contract of sale, only after a resale by the purchaser.

The instruction assumes, as a matter of law, that the sale was not consummated...