Chiles v. Garrison

• Decision Date: 31 July 1862
• Citation: 32 Mo. 475
• Parties: ARZUBA CHILES, Respondent, v. AARON F. GARRISON et al., Appellants.
• Court: Missouri Supreme Court

32 Mo. 475

ARZUBA CHILES, Respondent,

v.AARON F. GARRISON et al., Appellants.

Supreme Court of Missouri.

July Term, 1862.

Appeal from Jackson Circuit Court.

This was an action for money lent by the plaintiff to defendants. The answer denies the loan, and denies any indebtedness to plaintiff. At the date of the alleged loan the money was in special deposit with the defendants, and was afterward stolen from them.

Hovey & Henry, for appellants.

I. The instruction given by the court, upon its own motion, makes no distinction between a special and general deposit. (See Coffin v. Anderson, 4 Blackf., Ind., 403.)

II. This instruction is calculated to mislead the jury. The words “and that nothing remained to be done,” etc., leave them totally uninstructed as to the very point in issue, to-wit: What was legally necessary to constitute a loan? and, herein, of the necessity that defendants' instructions should have been given also. (See Coleman v. Roberts, 1 Mo. 97, 69.)

Hicks & Adams, for respondent.

I. The instruction given by the court, on its own motion, covered the whole case; and, therefore, all the other instructions were properly refused. The construction that was given left it to the jury to determine whether the money had been received by the appellants, and whether the loan was completed; or whether the money was afterwards to be delivered as a loan, and was lost by robbery. This was the whole question in the case; and the jury having found the issue for the plaintiff, their verdict ought not to be disturbed. The jury were the proper judges of the weight of evidence.

The question whether, under all the circumstances, there had been a loan and an acceptance thereof, was one of fact, and was properly submitted to the jury. (Chit. on Con. 390; Edan v. Duffield, 1 Q. Bench, 302 & 307; Lilly White v. Devereaux, 15 Mee. & W. 285, 291.)

There is analogy between loan and deposit. (See Sto. on Bail., § 55, 95.)

BAY, Judge, delivered the opinion of the court.

The only question presented by the record in this case is as to the propriety of the instruction given by the court. If the loan was complete before the robbery, then the loss fell upon the defendants; but if, under and by virtue of the terms of the contract, anything remained to be done to vest in the defendants the right to the money, then the loss was incurred by the plaintiff. We think no question can arise in regard to the delivery, for the money was already in the custody and possession of the defendants, having been previously left with them in special...