Chesapeake & O. Ry. Co. v. Wendt

• Decision Date: 14 October 1909
• Citation: 121 S.W. 661
• Parties: CHESAPEAKE & O. RY. CO. v. WENDT et al.
• Court: Kentucky Court of Appeals

121 S.W. 661

CHESAPEAKE & O. RY. CO. v. WENDT et al.

Court of Appeals of Kentucky.

October 14, 1909

Appeal from Circuit Court, Campbell County.

"Not to be officially reported."

Action by Louis H. Wendt and others against the Chesapeake & Ohio Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Galvin & Galvin and Wm. A. Burkamp, for appellant.

Wm. U Warren, for appellees.

O'REAR J.

Rath owned a rock quarry. He leased it to the Western Construction Company, a corporation, who operated it by quarrying the rock. The latter sold a quantity of the rock, 3,000 cubic yards, to appellees, trading as the Ohio River Stone Company. The rock sold to them was set aside and paid for, so appellees claim. It was stored on the leased premises. Later Rath came again into possession of the leased premises. It is said he sold the rock to appellant for ballast for its roadbed. This suit was by the Ohio River Stone Company, a partnership composed of appellees, against the railroad company for the value of some 300 perch of the rock which the plaintiffs claim was part of the purchase from the Western Construction Company, and which it was alleged the defendant had converted to its own use without the plaintiffs' consent. An issue was tendered on the subject of title.

In addition the defendant pleaded that it had purchased the stone from Rath in good faith, for value, and without notice of the plaintiffs' claim of ownership, that it found the stone in Rath's possession, and that he was the ostensible owner. This plea we think was insufficient, for the reason pointed out below, but an issue was nevertheless tendered upon it. The case went to trial before a jury, whose verdict was for the plaintiff for the market value of the stone at the time of its conversion.

The errors asserted against the judgment are two. One, that the defendant was entitled to a peremptory instruction at the close of the evidence; second, that the verdict is flagrantly against the evidence. Appellant also criticises the instructions given the jury by the trial court, but, as they were not made a ground for a new trial in the court below they do not constitute a ground for reversal in this court. We must confine the case to the two grounds available to the appellant, and which have been noted above.

The first ground is predicated upon the principle that a vendor retaining possession of a chattel may pass a good...