Ober v. John B. Carson's Ex'r

• Decision Date: 31 January 1876
• Citation: 62 Mo. 209
• Parties: ROBERT P. OBER, et al., Respondents, v. JOHN B. CARSON'S EXECUTOR, Appellant.
• Court: Missouri Supreme Court

62 Mo. 209

ROBERT P. OBER, et al., Respondents,

v.JOHN B. CARSON'S EXECUTOR, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

S. Knox, for Appellant, cited Kirby vs. Johnson, 22 Mo., 354; Shindley vs. Houston, 1 Conn., 261; Cunningham vs. Ashbrook, 20 Mo., 553; Jones et al. vs. Pearce, 25 Ark., 545; Hanson vs. Meyer, 6 East., 614; Cook vs. Hill, 5 Lansing [N. Y.], 243; Marsh vs. Rowe, 44 N. Y., 643; Cross vs. O'Donald, 51 N. Y., 211; Sto. Sales, § 296; Cobb vs. Haskell, 14 Me., 303.

Glover & Shepley, for Respondents, cited Bass vs. Walsh, 39 Mo., 192; Blow vs. Spear, 43 Mo., 496; Cunningham vs. Ashbrook, 20 Mo., 556; 2 Kent Com., 500-2; 2 Greenl. Ev., §§ 250, 251; S. W. F., etc. Co. vs. Stanard, 44 Mo., 71; U. S. Stat. at Large, pp. 465, 466, § 12.

WAGNER, Judge, delivered the opinion of the court.

This was a suit for the value of thirty-four bales of cotton, which, it was alleged, were sold by plaintiffs in 1862 to John B. Carson, now deceased. The plaintiffs' testimony tended to prove that they sold to James O. Carson, acting for and on behalf of John B. Carson, one hundred and one bales of cotton, at a certain price per pound; that in the afternoon of the day of the sale a boat arrived bringing thirty-six more bales of cotton for plaintiffs, and that this lot was sold to defendant also on the same terms on which he purchased the previous cotton; that the defendant, acting through James O. Carson, went and examined the cotton and rejected two bales, and they were rolled off to one side, and the remainder accepted; that plaintiffs directed the weighers to deliver the cotton to Carson, and told Carson to haul it off, and he would deliver to him the tax receipt; that Carson was then hauling off the one hundred and one bales, the weights to which had not yet been made out, nor the taxes paid; that before the weights had been made out or the tax bills paid, a fire occurred, which consumed eleven of the thirty-six bales, and Carson refused to pay for the thirty-four bales.

Defendant introduced testimony of a contrary character, tending to show that there had been no delivery or acceptance of the last lot of cotton.

When the deposition of one of the plaintiffs' witnesses was offered in evidence, detailing the terms of the sale and acceptance of the cotton, it was objected to on the ground, that the defendant was dead, and before it was admissible against him, it would be necessary to show that the contract was made with some person still living. The objection was overruled and the deposition received. The trial was before the court sitting as a jury, and for the plaintiff a declaration was given, that if it was found from the evidence, that in October, 1862, there were lying on the levee in the city of St. Louis thirty-six bales of cotton at one place, identified by specific marks, and being a separate lot of cotton in possession of the plaintiffs, and the plaintiffs sold the same to defendant for the price of 56 cents a pound, or any other price, and the defendant then and there bargained for the same at such price and no stipulation was then and there made by the parties, delaying the taking of possession of said cotton by defendant, and that after said sale the defendant by self or agent went and looked at said cotton, having previously received from the plaintiffs samples thereof, and after looking at said cotton, defendant, by self or agent, rejected one, two or three bales of the lot, and accepted the balance, and the rejected bales were then and there rolled away from the lot accepted, and afterwards the defendant, by self or agent, called said lot his own, and treated it as his own, by taking possession of it, and attempting to save it from the fire, the court should find for the plaintiff.

For the defendant, the court declared the law: 1st. Unless it was satisfied by the evidence, that the contract in issue was originally made with James O. Carson, the testimony of the witness Ober, to anything said or done in the lifetime of John B. Carson, was incompetent. 2d. Unless it was found from the evidence that there was a sale and delivery of the cotton in question by the plaintiffs to the defendant, the plaintiffs were not entitled to recover; that to constitute delivery in the case, it was incumbent on the plaintiffs to prove affirmatively that they delivered the cotton in controversy to the defendant, for the purpose of passing the title thereto to him, and that he received or accepted the same, with the view or for the purpose of making it his own. 3d. That in order to constitute a valid sale and delivery of goods, the vendor must have done everything which it was incumbent on him to do, he must have intended to part with the possession of them and have actually parted with the possession, and the vendee must have received the same with the intention and for the purpose of holding the same as owner. 4th. If it was found from the evidence that a sample of the cotton was shown by the plaintiff to the defendant, and that defendant bargained for the cotton if the same should be according to sample, such bargain vested no title to said cotton in the defendant until he had the opportunity to inspect said cotton and compare the same with the sample. 5th. Unless it was found from the evidence that there was a sale and delivery of the property in question by the plaintiffs to the defendant, the plaintiffs could not recover. Defendant asked eight additional declarations, which the court refused.

In reference to the first objection, that, as J. B. Carson was dead, the deposition in relation to the contract was inadmissible till it was first shown by other evidence that the contract sued on was originally made with a person living and competent to testify, it is only necessary to say, that the order in which testimony is admitted is a...