McKnight-Keaton Grocery Co. v. Hudson

• Decision Date: 13 February 1906
• Citation: 92 S.W. 1130,116 Mo. App. 551
• Parties: McKNIGHT-KEATON GROCERY CO. v. HUDSON et al.
• Court: Missouri Court of Appeals

92 S.W. 1130

116 Mo. App. 551

McKNIGHT-KEATON GROCERY CO. v. HUDSON et al.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. APPEAL—INSTRUCTIONS — OBJECTIONS AND EXCEPTIONS—RECORD—BILL OF EXCEPTIONS.

Objections and exceptions to the giving or refusing of instructions are no part of the record proper, but can only be preserved by a bill of exceptions.

2. APPEAL — PREJUDICIAL ERROR — INSTRUCTIONS —SINGLING OUT PARTICULAR FACTS IN EVIDENCE.

Where the good faith of the purchaser of goods in making the purchase was in issue, an instruction singling out a particular fact in evidence and charging that it was an act of good faith on the purchaser's part, and, if found to be a fact by the jury, should be so considered by them in arriving at their verdict, was prejudicial error.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the McKnight-Keaton Grocery Company against Lee Hudson and another, with S. J. Hudson as interpleader. Judgment for interpleader, and plaintiff appeals. Reversed.

Brewer & Collins, for appellant. Duncan, Bragg & Jeffers, for respondent.

BLAND, P. J.

The plaintiff, on August 28, 1903, brought suit by attachment against Lee Hudson and Emery Carte, in the Pemiscot circuit court, on an account for goods sold and delivered to them while they were doing a mercantile business in said county, under the firm name of Hudson & Carte. The writ of attachment, issued in the case, was levied upon a stock of merchandise found in the possession of S. J. Hudson, who, on October 19, 1903, filed an interplea, claiming the attached property as his own, to which plaintiff filed a general denial. At the March term, 1904, of the Pemiscot circuit court, the interplea was tried by a jury, resulting in verdict and judgment for the interpleader. The evidence for the interpleader tended to show that he purchased the attached goods of Hudson & Carte, paying value therefor, and assumed the payment of two small bills, which the firm owed for goods, believing, as he was informed by Hudson & Carte, that the bills assumed by him were the only debts owing by the firm on the stock of goods. Plaintiff's evidence tends to show that the interpleader's purchase of the goods was made without taking any invoice; that the trade was made hurriedly, and Hudson and Carte left the county immediately after turning the goods over to the interpleader. Plaintiff also offered evidence of admissions made by the interpleader, tending to show that his purchase of the stock of merchandise was not made in good faith.

The only error assigned by the plaintiff is the giving of the following instruction: "The court instructs the jury that if you find and believe from the evidence that if the said interpleader made...