Fougue v. Burgess

• Court: Missouri Supreme Court
• Writing for the Court: HOUGH
• Citation: Fougue v. Burgess, 71 Mo. 389 (Mo. 1880)
• Decision Date: 30 April 1880
• Parties: FOUGUE, Appellant, v. BURGESS.

71 Mo. 389

FOUGUE, Appellant,

v.BURGESS.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.

REVERSED.

Lewis Brown for appellant.

Cramer, Houck & Ranney for respondents.

1. EVIDENCE: hearsav.

HOUGH, J.

This was an action for an alleged wrongful seizure and conversion by the defendants of a certain sewing machine belonging to the plaintiff. The machine was seized and sold by the defendant Kopper, who was a constable, under an execution in favor of the defendant Burgess, and against one McLain. At the time of the seizure and sale the plaintiff was absent in France, and her son had charge of her dwelling and its contents, among which was the sewing machine in question. At the trial the statements of McLain made to one Taylor in the absence of the plaintiff, indicating that he was the owner of the machine and had a right to sell it, were offered by the defendants and received in evidence against the objections of the plaintiff. These statements were incompetent and inadmissible as admissions of McLain, and should not have been admitted. McLain was a competent witness, and not being a party to the action, his statements were mere hearsay and could not affect the rights of the plaintiff. They might have been used in the cross-examination of McLain, but they could not be introduced as independent testimony.

2. PRINCIPAL AND AGENT. estoppel.

The following instruction was given at the request of the defendants: “If you believe from the evidence that the defendant Kopper was a constable at the time of the seizure of the sewing machine, under an execution placed in his...