Gray v. Parker

• Decision Date: 31 March 1866
• Citation: 38 Mo. 160
• Parties: ROLLIN B. GRAY, Respondent, v. JACOB PARKER, et als., Appellants.
• Court: Missouri Supreme Court

38 Mo. 160

ROLLIN B. GRAY, Respondent,

v.JACOB PARKER, et als., Appellants.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Circuit Court.

This was a suit to recover possession of some trunks and valises. It appeared in evidence that Jacob Parker had certain notes against Adolphus Parker and one Murphy; that he sold them to plaintiff for a “patent right”; that Parker (of Parker & Murphy) sold to plaintiff certain trunks or valises in satisfaction of said notes; that said trunks and valises afterwards disappeared from the possession of plaintiff, and plaintiff alleged that he found them in the possession of defendants Jacob and Albert Parker, in a store on Fifth street, in St. Louis, from which place they were replevied.

The case was tried before a jury, and there was evidence tending to show that the trunks taken by replevin from Fifth street were trunks delivered to plaintiff by Parker & Murphy, and also evidence tending to show that at least some of the trunks and valises so taken could not be the trunks and valises delivered as above to plaintiff. The defendants claimed that the pretended transfer of the notes from Jacob Parker to plaintiff, and the pretended sale of the trunks, was all a sham and without consideration. The defendant Albert Parker had no hand in the pretended sale, and claimed a part of the trunks and valises replevied as his own, and offered evidence tending to prove that they were made on Fifth street, at his store.

Defendants then asked the court to give the following instructions, which were given:

1. If the jury believe from the evidence that the trunks and valises taken by the officer from the store on Fifth street are not the same trunks and valises that were delivered to the plaintiff at Murphy & Parker's store on Second street, and afterwards stored on Second or Third street, then the jury will find for the defendants, and assess the value of the trunks and valises so taken by the officer, and will assess as and for damages the interest at six per cent. per annum on the value of said trunks and valises, from the date they were taken by the officer to the present time.

2. If the jury believe from the evidence that a part of the trunks and valises taken by the officer from the store on Fifth street were not the trunks and valises delivered to the plaintiff at Murphy & Parker's store on Second street, but were manufactured by the defendant Albert Parker at the store on Fifth street, then the jury will find for the defendants as to such trunks and valises, and will assess the value of them at the time of taking by the officer, and will also assess as damages the interest at six per cent. per annum on the value of said trunks and valises, from the time the officer took them to the present time.

The defendants also asked the court to give the following instructions, which the court refused, to which refusal of the court to give the same, the defendants then and there excepted:

4. The burden of proof is upon the plaintiff to satisfy you that the trunks and valises taken by the officer from the store on Fifth street, were the same trunks and valises that were delivered to plaintiff at the store of Murphy & Parker; and that the sale of the notes by Jacob Parker to plaintiff, and the sale of trunks and valises by Murphy & Parker to plaintiff, were in good faith and for a valuable consideration.

5. If the jury believe from the evidence that the transfer of the notes of Murphy and Parker, by Jacob Parker to the plaintiff, was without consideration, and so understood to be by the plaintiff and Jacob Parker at the time, and that the delivery of the trunks by Parker (of the firm o Murphy & Parker) was made to the plaintiff for the benefit of Jacob Parker, and so understood by the plaintiff, then the plaintiff had no valid title to said trunks and valises, and cannot recover in this action.

6. If the patent right spoken of by the witness was of no value, and so understood by the plaintiff and Jacob Parker at the time of said alleged sale of the notes to plaintiff; or if plaintiff has never made to the defendant any valid title to the same; or if it does not appear from the evidence that some other consideration was given by plaintiff for the notes, then the sale of said notes to plaintiff was without consideration and void, and plaintiff cannot recover.

The plaintiff asked the court to give the following instructions, which the court gave; to the giving of which the defendants excepted.

1. If the jury believe from the evidence that the firm of Murphy & Parker made a sale of the trunks and valises, sued for in this case, to the plaintiff, said sale cannot be impeached by the defendants in this suit on the ground of a want or insufficiency of consideration.

2. The return of the sheriff of his execution of the writ of summons and seizure is binding upon both parties to the suit, and no evidence oming from either side can be allowed to contradict or impeach its validity.

3. If the jury believe the plaintiff is owner of the goods sued for, and was entitled to the possession thereof, at the commencement of this suit, they must find for the plaintiff.

4. If the jury believe from the evidence that the defendant Jacob Parker wilfully took and carried away from the plaintiff any of the goods belonging to plaintiff and sued for in this action, and afterwards mixed the same with goods of his own on Fifth street, or goods which were in his possession as bailee on Fifth street, so that it was impossible to identify and distinguish the goods so taken away from the plaintiff from the...