Hess v. Clark

• Decision Date: 28 February 1882
• Citation: 11 Mo.App. 492
• Parties: S. F. HESS ET AL., Appellants, v. M. L. CLARK ET AL., Respondents.
• Court: Missouri Court of Appeals

11 Mo.App. 492

S. F. HESS ET AL., Appellants,

v.M. L. CLARK ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1882.

1. The giving of a declaration of law, by the court before whom the cause is tried without a jury, to the effect that upon the pleadings and evidence the plaintiff is not entitled to recover, is not equivalent to sustaining a demurrer to the evidence.

2. In such a case, where no other declaration of law is asked or given, the record stands as if none had been given, and it will be assumed that the court found for the defendant upon the evidence.

3. If the evidence as to a material fact is conflicting, and a given finding thereon is necessary to sustain the judgment, it will be presumed that such finding was made.

4. One who, in good faith, takes personal property for an antecedent debt, will be treated as a purchaser for value, and will be protected against a claim of the original owner, to the same extent as if he had just purchased it for value.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

H. A. & A. C. CLOVER and WILLIAM F. WERNSE, for the appellants: One to whom property has been conveyed in payment of antecedent debts, is not a bona fide purchaser, and cannot hold the property as against the vendor.-- Downs v. Belden, 46 Vt. 674; Miner v. Willoughby, 2 Minn. 225-239; Bomard v. Campbell, 58 N. Y. 73; McLeod v. Bank, 42 Miss. 99.

McCOMAS, McKEIGHAN & JONES and GEORGE M. FORSTER,

for the respondents: One who takes personal property or negotiable paper in payment of an antecedent debt, is a bona fide purchaser for value.-- Butters v. Haughwout, 42 Ill. 18, and cases cited; Lee v. Kimball, 45 Me. 172; Green v. Kennedy, 6 Mo. App. 577. If there is any legal evidence which tends to uphold the finding and judgment below, in a case tried by the court sitting as a jury, the appellate court will not interfere with the finding of the court as to the facts, but will assume that the court found the facts correctly.-- Hamilton v. Boggers, 63 Mo. 233; Waddell v. Williams, 50 Mo. 219; Tucker v. Railroad Co., 54 Mo. 177.

BAKEWELL, J., delivered the opinion of the court.

This was an action of replevin for a lot of cigarettes. The goods were taken from defendants by the sheriff and delivered to the plaintiffs. On the trial a jury was waived, and the cause was tried by the court. The finding was, that the plaintiff is not entitled to recover, and that defendants are entitled to a return of the goods or their value. Judgment was entered accordingly, and the value of the goods was assessed at $460.

At the close of plaintiffs' case, defendants asked an instruction to the effect that under the pleadings and evidence plaintiffs cannot recover, and the defendants are entitled to a return of the goods or their value. It is necessary at the threshold to determine the effect of this declaration of law, which was the only declaration of law asked or given in the case.

Where a case is tried by the court without a jury, if no declarations of law appear and there are no special findings of facts, and the case is not a proceeding in equity in which the appellate court reviews the facts and weighs the evidence, the judgment ought not to be reversed on appeal as unsupported by evidence, if on any possible theory of the law applied to any possible finding of facts, supported by substantial evidence, the judgment can be sustained. Where a case is tried by a jury, an instruction to the effect that on the facts in evidence the defendant is entitled to a verdict, is in effect a declaration that a demurrer to the evidence ought to be sustained. In giving such an instruction, the court takes from the jury the consideration of the facts in evidence, on the theory that, giving the most favorable construction to every fact in evidence which goes to support plaintiff's case, there is no substantial evidence from which an inference can be fairly drawn, which will warrant a verdict for the plaintiff. But where the cause is tried without a jury, no reason appears why the giving of an instruction that on the pleadings and evidence plaintiff is not entitled to recover, should be looked upon as having the effect of sustaining a demurrer interposed by defendant to the plaintiff's evidence. By the act of the parties, the court has been made the trier of the facts, and, in such a case, a declaration that on the pleadings and evidence plaintiff is not entitled to recover, seems to have no other meaning than this, that the court, upon the admissions and evidence, finds for defendant. Not that there is no evidence which might warrant a finding for plaintiff, but that, taking the whole evidence together, and applying to it the law applicable to such facts as the trier of the facts finds, the court trying the facts finds for defendant upon the whole evidence.

No other instruction being asked in the present case, we must affirm this judgment unless it appears that the trial court erred in the admission or exclusion of evidence. Continental Bank v. Bradley, post. p. ___. But appellants do not pretend that any such error appears on the record. Their contention is, that, conceding that certain facts were proved, then, on what they conceive to be the law applicable to those facts, plaintiff was entitled to a judgment. We can say, on examining a record, that there was a total absence of proof of certain facts, and that proof of those facts was a condition precedent to recovery. But in a case wherewe are not the legally appointed triers of the fact, it does not appear how we are to say, in the face of a contrary finding by the trial court, that such and such facts were proved. Nor in such a case can we say, if there was any evidence of a substantial character tending to prove a certain fact which is the only controverted fact in the case, that such a fact was not proved, if the judgment cannot be sustained unless such facts were found. If there is conflicting testimony as to one material fact which, if found, would warrant a finding for defendant, if no instructions are asked or given, and there is a finding for defendant, it must be presumed that...