Himes v. McKinney

• Decision Date: 30 June 1834
• Citation: 3 Mo. 382
• Parties: HIMES v. MCKINNEY.
• Court: Missouri Supreme Court

3 Mo. 382

HIMES

v.MCKINNEY.

Supreme Court of Missouri.

June Term, 1834.

ERROR TO CRAWFORD CIRCUIT COURT.

M'GIRK, C. J.

An action of trover was brought by Alexander McKinney against Himes, for taking and converting to his use fifteen thousand feet of pine plank. The defendant pleaded not guilty, verdict and judgment were given for the plaintiff for $160 25. It appears by the record that one Blankenship made his note to one Reed, to pay to him 15,000 feet of pine plank, that the note afterwards without it being shown how, came into the hands of McKinney, that McKinney put the note into the hands of one Lynch for collection, and made Lynch his agent for that purpose, that Lynch received from Blankenship about 5,000 feet of plank on the note, that then Lynch put the note into the hands of one McCutchen, to receive for McKinney the balance, and McCutchen did agree with him to receive the balance and convey the same down the Gasconade river and to deliver the whole to the plaintiff, that McCutchen did receive the balance of the 15,000 from Blankenship, and then received of Lynch what he had before received and took charge of the whole. While McCutchen was thus in possession, Himes the plaintiff in error, sued out an attachment against Reed as an absconding debtor, and caused the same to belevied on the plank as Reed's in the hands of McCutchen: that afterwards Himes took possession of the plahk, informing the constable that the debt in the attachment was settled, and directed the constable to relinquish his possession as an officer, which he did: that Himes then sold the plank to McCutchen and one Samuel Ward, who carried the same down the Gasconade river, sold the same on their own account and used the money; it was also proved, that during the time the note was in McCutchen's hands, there was an assignment on the same from Reed to McCutchen, that when the note was paid it was delivered to Blankenship, who tore his name off and that the note was destroyed. That McKinney delivered the note to Lynch as his property.

On this state of facts the defendant moved the court to instruct the jury, if they believe from the evidence defendant ordered the constable to levy on the plank in the custody of the plaintiff's agent, and without having injured or removed the same from the place where it was when levied on, and that the same was returned by the defendant to the plaintiff's agent, then they can only find for the detention and not for the value. The court refused...