Matthews v. McElroy

• Citation: 79 Mo. 202
• Parties: MATTHEWS, Plaintiff in Error, v. MCELROY.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

79 Mo. 202

MATTHEWS, Plaintiff in Error,

v.MCELROY.

Supreme Court of Missouri.

October Term, 1883.

Error to Louisiana Common Pleas Court.--HON. G. PORTER, Judge.

AFFIRMED.

W. H. Biggs for plaintiff in error.

Smith & Krauthoff with E. T. Smith for defendant in error.

NORTON, J.

This is a suit in the nature of replevin begun in the Louisiana court of common pleas to recover the possession of a certain carriage. On the trial of the cause defendant obtained judgment, and plaintiff brings the case to this court by writ of error, and seeks a reversal thereof upon alleged errors of the court in giving and refusing instructions.

It appears from the record before us that T. G. Stark and J. N. Jump were the administrators of the estate of W. C. Duncan, deceased, and on the 13th day of August, 1878, had a public sale of the personal property of said estate; that the carriage in question was bid off at said sale by plaintiff at $61; that the terms of the sale were a credit of six months without interest, the purchaser to give notes with approved security; that plaintiff did not comply with these terms, but, as he states in his evidence, “late in the evening after the sale he had a talk with one of the administrators about the carriage, and stated to him that he did not like to ask any one to go his security, and proposed in lieu thereof to leave the carriage on the place with a son of the deceased as security for the amount bid; that the carriage was so left and was not to be taken until he paid for it, and that nothing was said as to when he was to send for it.”

Mr. Stark, one of the administrators, testified as follows: “Was present at sale of personal property belonging to estate of Wm. C. Duncan. I am one of the administrators. Plaintiff bought the carriage in controversy, at the sale. Plaintiff said to me that he would leave the carriage on the place, with Charles Duncan, and that he would pay when he sent for it. Plaintiff said that he did not want to give a note. I had conversation with plaintiff at my house, about the 1st day of February, 1879. Plaintiff said that he had come to pay me for the carriage, as the money was about due. I told him that I had sold the carriage to McElroy; that I supposed he intended to send for the carriage in a few days, and wanted to pay cash instead of giving a note. I said nothing to plaintiff about sending for carriage. I feared, if I did, he would be offended. It was not my business.”

The evidence shows that the carriage was...