Finney v. Watkins

• Decision Date: 31 March 1850
• Citation: 13 Mo. 291
• Parties: JOHN & WILLIAM FINNEY v. BENJAMIN F. WATKINS.
• Court: Missouri Supreme Court

13 Mo. 291

JOHN & WILLIAM FINNEY

v.BENJAMIN F. WATKINS.

Supreme Court of Missouri.

March Term, 1850.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

This was an action of trover brought by Watkins against J. & W. Finney for a boiler and fixtures, one hydraulic press with pumps complete, and other property (all of which was the implements used in a candle factory in the manufacture of candles, and some materials of which candles were to be made). Plea, not guilty. At the trial, the plaintiff offered in evidence a paper purporting to be a bill of sale by Wm. H. Saunders to the plaintiff, of all his, Saunders', right, title and interest in his candle factory, one boiler and fixtures, one hydraulic press with pumps complete, and other specified property, and whatsoever else about the factory that is necessary to carry on the candle-making business, the empty carboys which held vitriol included, having first called as a witness George A. Hyde, who testified that the paper was acknowledged before him the ninth day of June, 1842, by Wm. H. Saunders, that it was Wm. H. Saunders', act and deed; that he did not know Saunders' signature; did not see him sign the paper, nor did he sign it as a witness to the signature of Saunders. The paper purported to have been acknowledged as the act and deed of Saunders, before Hyde, as a justice of the peace, and had been recorded in St. Louis county. The defendants objected to the admission of the paper in evidence, because the signature of Saunders thereto was not proved, because the execution of the same was not proved, and because it was not authenticated properly, but the court admitted it in evidence, to which the defendants excepted. Subsequently, another witness proved the signature of Saunders.

The plaintiff then proved that Saunders and William M. Hague were partners in the candle factory, and gave evidence tending to prove that Hague had assented to the sale by Saunders to Watkins, and had agreed to work in the factory for Watkins; that Saunders had delivered the key of the factory to plaintiff. That Saunders shortly after ran away, and Hague delivered the factory and property in it to John & Wm. Finney, and John Lee and plaintiff demanded the property (mentioned in the bill of sale of Saunders) and other bills from Wm. Finney; that he refused to give it up. It was proved that the fee of the land, where the factory was situated, belonged to J. & W. Finney, they having leased the same for ten years to said Saunders & Hague, and that the property mentioned in the bill of sale of Saunders to Watkins was worth more than the amount alleged to have been paid by Watkins f it; that John & William Finney were partners. The bill of sale bore date the ninth of June, 1842, and the plaintiffs gave in evidence an agreement of Saunders of the same date, that he would pay rent to Watkins from that time to the first of July, 1842.

The defendants then proved that the firm of Saunders & Hague was indebted to them, and that on the 2nd July, 1842, said Hague conveyed to John Finney, William Finney and John Lee, composing the firm of Finney, Lee & Co., by bill of sale of that date, the property at the factory in consideration of the indebtedness of Saunders & Hague to J. & W. Finney, and the liabilities assumed by William Finney, and also by John Lee for Saunders & Hague. The defendants also proved that the two Finneys and John Lee were partners under the name of Finney, Lee & Co., and had a running account with Saunders & Hague, having repeatedly supplied them with stock for the manufacture of candles, and bought candles of them, and sold candles for them.

The defendants then offered in evidence the deposition of said John Lee on their behalf, the same being material to them, but the plaintiff objected to the same on the ground that said Lee was incompetent as a witness for defendants, on the ground, as he assumed, of interest; and the court excluded the said deposition on the said ground, to which the defendants excepted. The defendants then proved that the hydraulic press (part of the property sued for) was put into a hole dug into the ground and walled up with solid masonry; that the bottom of the cylinder rested on flanges on the stone wall even with the floor, but the press was not otherwise attached to the wall than by resting on it--flanges placed in the wall--and that the part of the press around the cylinder was of plank and nailed to the floor, and braces were nailed to the press, and also to the rafters of the building to steady the press. The press was braced, braces nailed to the press, and plank could be taken down, taken away; could take the braces down by drawing out the nails, then lift out the cylinder. Three or four braces were slightly nailed to the rafters in one end and to the press by the other. It would not injure the building to take the braces down, the braces were merely to hold the press steady. That John Finney paid for putting up the press partly in 1841, and partly next spring; the work had been done for Saunders & Hague, and they were to have paid for it. There was a hot closet around the press, lathed and plastered, and fastened to the floor and ceiling, so that the press could not be removed without tearing it away. Defendants also gave evidence tending to prove that Hague did not assent to the sale by Saunders to plaintiff, and did not know of such sale.

The plaintiff then gave in evidence an agreement proved to be in the hand writing of John Finney, of Finney, Lee & Co., with Hague, referring to the conveyance by Hague to Finney, Lee & Co., and binding them to return the premises to Hague when the stock on hand was manufactured, provided it should be sufficient to pay the indebtedness to them after paying all expenses; or if the stock manufactured should not repay them, then Hague might make an arrangement for carrying on the business with them, or with any other person, by securing the balance due them; and also agreeing to pay Hague at the rate of fifty dollars per month for manufacturing the stock then on hand.

The court, upon motion of the plaintiff, gave to the jury the following instructions: 1st. If the jury find from the evidence that Saunders & Hague, or either of them, were the owners of the articles of personal property sued for in this action, or any of them, and that they were sold and delivered by the said owner or owners to the plaintiff for valuable consideration paid, or to be paid, that said purchase was made by the plaintiff bona fide, honestly, and that afterwards and before the commencement of this suit, defendants got possession of the same articles without the consent of the plaintiff, and retained them, and refused or neglected to deliver them to him, notwithstanding he demanded the same from them, then they will find for the plaintiff. 2nd. That if the jury find for the plaintiff, the measure of damages will be the value of the articles of personal property belonging to the plaintiff, taken and held by the defendants at the time of the taking, with interest thereon from that date 3rd. That the hydraulic press sued for in this action with its appurtenances, is in its nature personal property, and may be sued for in an action of trover, and recovered when a right of recovery is established, notwithstanding the jury may find that it was set up for use on a solid foundation of masonry, and supported by flanges resting on masonry, and by braces nailed to the rafters of the building. 4th. That if Saunders, or Saunders & Hague, were tenants of defendants, and placed the said hydraulic press on the leased premises, and used the same for the purpose of carrying on a candle factory, and the trade of candlemakers, then the said press and appurtenances might be removed by said tenants, and belonged to them, notwithstanding it was supported on the foundation by flanges and also supported above by braces or other fastenings to the building, and is to be considered as personal property in this suit. 5th. That a sale by Saunders of personal effects and articles of the firm of Saunders & Hague to plaintiff, was sufficient to pass title thereof, if assented to by Hague, if such sale was made and assent were given. 6th. If Saunders sold the articles in question to plaintiff, gave the deed read in evidence to him, and Hague then or afterwards assented thereto, and the sale of the articles therein specified, then the title of them passed, although belonging to the firm of Saunders & Hague. 7th. That a resting upon the soil and freehold, or on masonry erected thereon, or an attachment thereto by braces in order to keep the machine firm, fastened with nails to the main building, is not necessarily such an annexation as makes the property a part of the freehold.

And the court of its own motion, gave to the jury these instructions: 1. If the jury are satisfied from the evidence that the property, or any part of it, specified in the bill of sale from Saunders to Watkins, dated June 9th, 1842, belonged to a firm consisting of the said Saunders & Hague, then said bill of sale alone could not operate in law to convey to Watkins the title of such property; inasmuch as it does not purport to have been executed by Saunders as the agent or in the name and behalf of said firm. 2. Although a sale by Saunders of the personal effects and stock of the firm of Saunders & Hague, with the consent and approbation of Hague, would bind the latter, yet the jury should be satisfied from the evidence, if such sale were made, that Hague assented thereto, otherwise he could not be bound thereby, nor could the plaintiff recover the partnership property from those to whom Hague may subsequently have conveyed and delivered them. To the giving of all which instructions, the defendants excepted.

The court also gave to the jury upon motion of the defendants the following instructions: 1. If the jury find from the evidence that the property for which this suit was brought, or any part of it...