Boutell v. Warne

• Court: Missouri Supreme Court
• Writing for the Court: WAGNER
• Citation: Boutell v. Warne, 62 Mo. 350 (Mo. 1876)
• Decision Date: 31 January 1876
• Parties: IRA BOUTELL, Appellant, v. MARINUS W. WARNE, Respondent.

62 Mo. 350

IRA BOUTELL, Appellant,

v.MARINUS W. WARNE, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

G. W. Bailey, for Appellant.

The court erred in refusing to permit plaintiff to show, by proper documentary evidence, that since this action was instituted the title of the lot had been perfected by plaintiff. (Wash. R. P., 3 ed., vol. 3, p. 276-7; Pierce vs. Hall. 41 Barb., 142-144; Id., 277, 278; Crowley vs. Wallace, 12 Mo., 143; 3 Cow., 75; Irvine vs. Irvine, 9 Wall., 617; Poole vs. Fleeger, 11 Pet., 185, 211; Shumate vs. Reavis, 49 Mo. 333, 336; Ware vs. Johnson, 55 Id., 500; Carter vs. Mills, 30 Id., 440, 443; Union Bank vs. Maynard, 51 Id., 548; Mitchel vs. Handfeldt, 33 Id., 431-439; Thornton vs. Miskimmon, 48 Mo., 219-222; Jackson vs. Bull, 5 Johns. R., 309; Jackson vs. Raymond, 1 Johns. Ca., 85 [fn]; Heath vs. Ross, 12 Johns. Ca., 140; Jackson vs. Bard, 4 Johns. Ca., 230; Jackson vs. Davenport, 20 Johns. R., 536, 551.

Krum & Madill, for Respondent.WAGNER, Judge, delivered the opinion of the court.

This was an action, under the statute for the claim and delivery of personal property, to recover the possession of a stock of merchandise. The plaintiff gave a bond and was put in possession.

From the record it appears, that on the 9th day of April, 1873, plaintiff and defendant entered into a written contract at St. Louis, whereby the stock of goods in question was sold to plaintiff by the defendant, for the sum of ten thousand dollars, defendant guaranteeing that the actual cost price of the goods was the sum of thirteen thousand five hundred dollars. Payments were to be made by plaintiff part in land and part in cash, as follows: One lot of business property in Kansas City was to be taken at its appraised cash value, to be free and unincumbered, and the method of appraisement was provided for. The remainder was to be paid in two instalments, one thousand dollars in cash, and the balance in fifteen days after the completion of the inventory. The contract then provided for an inventory of the goods at the expense and under the direction of plaintiff, the vendee, and provided that if the goods were not up to the guaranteed cost price, there should be no breach of the contract, but a corresponding reduction of the amount of the purchase money only. Possession was not to be given plaintiff, except for the purpose of taking an inventory, until he had fully complied with the condition on his part. Sales of the goods were to be continued in the store where the goods were, at plaintiff's expense, and the proceeds were to be applied in reducing the amount of the purchase money.

The plaintiff paid to the defendant one thousand dollars at the time the agreement was drawn up and signed. The lot at Kansas City was appraised at $4,800, but it seems there was some difficulty about the title. Defendant, however, finally received a deed for the same, and gave the plaintiff a receipt therefor, in which it was expressed that the $4,800, at which it was valued, was to be applied to a credit on the goods. He also acknowledged the receipt of a check for $975 and $25 in cash, which, if the check was honored, was also to be applied in payment of the contract. Plaintiff then, at the request of the defendant, made the deed to Mary A. Warne, the defendant's daughter, but there was a mistake in the deed, the property being described as situated in St. Louis county instead of Jackson county. This deed was offered in evidence by the plaintiff, and excluded by the court. This error was not discovered till after the suit was brought, but when it was found out plaintiff made a new deed rectifying the error, and had it recorded in the proper county. This was also offered in evidence by the plaintiff, and ruled out.

It is claimed that the defect in the title, which was a right of dower in a small portion of the premises, was cured after this suit was begun, and deeds were offered in evidence to prove that fact, but the court excluded them.

Plaintiff further offered to prove, that defendant's daughter Mary had conveyed the lot to one Burchard, in satisfaction of a debt due from defendant to Burchard, and that the latter was, at the time of the trial, in possession under the conveyance. This evidence the court rejected.

There was a tender by the plaintiff, before the institution of the suit, of the sum of three thousand dollars, which the defendant refused to accept, and which, it was alleged, with the previous payment and the real property, made up the whole value due the defendant for the goods. There was a controversy as to whether the goods had ever been delivered to the plaintiff after the inventory was completed, and this was the sole issue upon which the court submitted the case to the jury.

For the defendant an instruction was given, that the plaintiff could not recover unless he had shown in evidence, to the satisfaction of the jury, that at the time he began his suit he was entitled to the immediate and exclusive possession of the stock of goods in question.

For the plaintiff the court gave the converse of this proposition, and declared, in substance, that if, after the inventory of the stock of goods, the defendant surrendered possession thereof to the plaintiff, and the plaintiff took the same, or if, from the evidence, it was shown that the plaintiff complied with all the conditions on his part of the contract for the sale of the goods, or complied to the satisfaction or acceptance of the defendant, before the institution of the suit, then the verdict should be for the plaintiff. All the instructions of the plaintiff in reference to the conveyance of the real property, were rejected.

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