Mellinger v. Hunt

• Decision Date: 06 April 1895
• Citation: 62 N.W. 813,94 Iowa 351
• Parties: SAMUEL MELLINGER, Appellant, v. SAMUEL B. HUNT, Sheriff
• Court: Iowa Supreme Court

62 N.W. 813

94 Iowa 351

SAMUEL MELLINGER, Appellant, v. SAMUEL B. HUNT, Sheriff

Supreme Court of Iowa, Des Moines

April 6, 1895

Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.

Action to recover damages for the alleged wrongful taking of twenty-four barrels of linseed oil, the property of the plaintiff, by the defendant, as sheriff, under an execution in favor of H. S. Clark & Co. against Mark & Mellinger, as the property of said Mark & Mellinger. Verdict and judgment in favor of the defendant. Plaintiff appeals.

Affirmed.

Power Huston & Power for appellant.

S. L Glasgow for appellee.

OPINION

Given, C. J.

I.

The errors assigned relate solely to certain instructions given and refused. Only part of the evidence is set out, but sufficient, we think, for an understanding of the questions discussed. The controlling issue, as correctly stated by the court, is "as to whether or not, at the time of the said seizures, the plaintiff was the actual owner of the said property seized." There was evidence tending to show that some time prior to July 21, 1893, plaintiff, through Mark & Mellinger, purchased from Clark & Co. sixty barrels of linseed oil, which were stored in the back cellar of the premises occupied by Mark & Mellinger, apart from their oils; that, Mark & Mellinger being out of oil, it was agreed between the plaintiff and Mellinger, of said firm, son of the plaintiff, that said firm might take of plaintiff's oil, and replace the same with oil of the same kind and quality; that in pursuance of said arrangement Mark & Mellinger did, from time to time, take of plaintiff's oil to the amount of twenty-five barrels. Some time prior to July 21, 1893, Mark & Mellinger purchased other oils from Clark & Co., and it is claimed by plaintiff that the oil borrowed from him was replaced by the twenty-four barrels seized by the defendant, and by payment for one barrel. Defendant contends that the sixty barrels of oil were not purchased by the plaintiff from Clark & Co., but by Mark & Mellinger, and that neither said sixty barrels nor the twenty-four barrels in question were ever separated from the property of Mark & Mellinger, and never became the property of the plaintiff. It appears that the transaction between plaintiff and Mark & Mellinger was with plaintiff's son, F. M. Mellinger, of said firm. The defendant questions the integrity and fairness of the transaction as claimed by plaintiff.

II. Appellant's ownership of the property in question rests upon the alleged transactions with his son and the bona fides thereof. The court, after instructing the jury to consider all the facts and circumstances relating to said transactions, added as follows: "And so far as the dealings in controversy appear to have been between the plaintiff and his son, F. M. Mellinger, of the said firm of Mark & Mellinger, such relationship would invite your careful scrutiny of the transactions in question. But if, after receiving your careful attention, they appear by a fair preponderance of the evidence to have been honestly conducted and in good faith, for the purposes claimed, the fact of said relationship will not render them less binding or effective than similar transactions between persons not related." Appellant cites Allen v. Kirk, 81 Iowa 658, 47 N.W 906, wherein it is said: "We are aware of no law which prevents friends and relatives from buying and selling between each other, or that creates any presumption of fraud from the mere fact of their dealing. When fraud is charged, the relationship of the parties is proper to be...