Martin v. Withington

• Decision Date: 30 April 1837
• Citation: 4 Mo. 518
• Parties: MARTIN v. WITHINGTON.
• Court: Missouri Supreme Court

4 Mo. 518

MARTIN

v.WITHINGTON.

Supreme Court of Missouri.

April Term, 1837.

ERROR TO LINCOLN CIRCUIT COURT.

C. WELLS, for Plaintiff. This was an action of detinue, brought by Martin against Withington, for a sack of coffee. The defendant pleaded, 1st. Nondetinet. 2nd. Property in defendant. 3rd. That goods were delivered to him as bailee, and not demanded. And 4th. That he and defendant bought the goods in partnership, and that no division had been made. The plaintiff joined issue to the first plea, and replied to the three others, to which the defendant joined issue. No jury was required, and the court, sitting as a jury, found the first and third issues for defendant, and the second and fourth for plaintiff, and gave judgment for defendant. The plaintiff moved the court for a new trial, on the ground that the first and third issues ought, from the evidence, to have been found for the plaintiff. The court overruled the motion, and this is assigned for error.

This being purely a question of fact, it is only necessary to look to the evidence as set out in the bill of exceptions. The third plea avers, 1st, that the goods were delivered to defendant as bailee. The evidence shows that the defendant kept a warehouse on the river, at a steamboat landing. The plaintiff left in defendant's yard the sack of coffee sued for, together with other goods, and requested defendant to put them in the house if it rained. The defendant's wife did put them in the warehouse; that plaintiff sent a man with a wagon for the goods; that defendant was not at home, and that his son delivered the coffee and other goods to the wagoner, and that the wagoner put them in his wagon; that defendant came home before the wagon had gone, and took the coffee out of the wagon, and refused to let the wagoner have it, but permitted the wagoner to take away the remainder of the plaintiff's goods. The plaintiff in error contends that there was no delivery to the defendant as bailee; but, if there was, that the defendant had become legally dispossessed of the coffee by the delivery of it, by his son (who was his agent) to the wagoner, (who was the agent of the plaintiff to receive his goods.) 2nd. The third plea avers, that the plaintiff never demanded the coffee till the commencement of this suit. The evidence shows that the plaintiff employed a wagoner to go for his goods, that he went, and that defendant did not dispute or question his agency, but fully recognized it by permitting him to take away a part of the goods. The whole of the evidence is clearly for the plaintiff on the third issue. The first issue ought to have been found for the plaintiff, as the evidence shows property in the plaintiff; possession in defendant, and that the defendant did unlawfully detain the goods.E. BATES, for Defendant. This is an action of detinue, brought by Martin against Withington, for a sack of coffee. Defendant pleaded four pleas-- 1st. Non-detinet. 2nd. Property in defendant. 3rd. The coffee deposited with defendant as bailee, and no lawful demand made. 4th. The coffee bought by plaintiff and defendant as partners, to be divided, and no division made. The court sitting as a jury, found the issues first and third for defendant; second and fourth for plaintiff. Judgment for defendant; to reverse which, the case comes here by writ of error. The only error assigned, is, that the court overruled the plaintiff's motion for a new trial. I believe it is a question of fact only, depending on the testimony, which is short and embodied in the bill of exceptions, to which I refer; and for the defendant, I submit that the new trial was properly refused.

TOMPKINS, J.

Martin brought an action of detinue against Withington, and judgment being given against him in the Circuit Court, he applied for a new trial. This being refused, he brings the cause into this court by writ of error. From the evidence preserved in the bill of exceptions, it appears that Withington, the defendant in the action, kept a warehouse on the bank of the Mississippi, that among several other articles, a bag of coffee had been deposited with him by Martin, the plaintiff in the action. Martin sent a wagon for his goods, and the defendant not being at home, they were delivered to the driver of the wagon by the son of Withington, a youth “about grown.” Before the wagon departed the defendant came home, and observed, that had he been there the plaintiff should not...