Parker v. Rodes

• Decision Date: 31 October 1883
• Citation: 79 Mo. 88
• Parties: PARKER v. RODES et al., Appellants.
• Court: Missouri Supreme Court

79 Mo. 88

PARKER

v.RODES et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Moberly Court of Common Pleas.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

Martin & Priest for appellants.

Hollis & Wiley for respondent.

NORTON, J.

This suit was instituted in the Moberly court of common pleas against defendants Rodes and Priest and one Holt to recover the value of certain goods sold by plaintiffs to defendant Holt.

It is averred in the petition: That on the 24th day of February, 1879, the defendant, S. W. Holt, purchased of plaintiffs goods and merchandise to the amount of $131.52; that defendant Holt, at the time of said purchase, falsely represented himself to be perfectly solvent, and upon said representation plaintiffs were induced to sell said goods, when in truth and in fact, said Holt was hopelessly insolvent; that on or about the -- day of March, 1879, said defendant Holt sold his stock of drugs in Moberly to the defendants Chas. B. Rodes and Theodore Priest; that afterward, to-wit: On the -- day of March, 1879, said goods so sold and shipped by plaintiff to said Holt, arrived at Moberly and were received by said defendants, Rodes & Priest, said Rodes & Priest well knowing that said goods were not paid for, and well knowing that defendant Holt was utterly insolvent; that plaintiffs, on the -- day of March, 1879, immediately after said goods were received by defendants Rodes & Priest, and before said Rodes & Priest had paid said Holt for said goods, made demand for said goods of said Rodes & Priest; but said defendants refused to deliver said goods to plaintiffs or to pay plaintiffs for the same, but wrongfully converted said goods to their own use, at the same time well knowing that the purchase money had not been paid. Plaintiffs aver that said debt sued on is for the purchase money of said goods, so taken and converted by the defendants Rodes & Priest. It is also averred that by reason of such wrongful conversion they have been damaged in the sum of $131.52.

Holt did not answer; defendants Rodes & Priest filed separate answer denying all the allegations of the petition.

On the trial defendants Rodes & Priest objected to the introduction of any evidence under the petition, on the ground that there was a misjoinder of parties defendant, and because the petition did not state facts sufficient to constitute a cause of action against them. The objection was overruled, and evidence received tending to show that in February, 1879, plaintiffs sold and delivered to defendant S. W. Holt, who then owned a drug store in Moberly, goods to the value of $131.52; that Holt, after receiving the said goods, sold his drug store in March, 1879, with the goods so purchased of plaintiffs to the firm of Rodes & Priest, the defendants, and that defendants Rodes & Priest paid Holt the purchase price. Evidence was also introduced tending to show that defendant Rodes, of the firm of Rodes & Priest, knew, before the firm paid said Holt for the goods in controversy, but after they had bought them from Holt, that Holt had not paid the plaintiffs for them. There was also evidence tending to show that defendants had no such knowledge. At the close of the evidence defendants asked the following instructions, which were refused:

1. That the plaintiffs are not entitled to recover against the defendants Rodes & Priest in this action.

2. That if Rodes & Priest bought the goods and merchandise sued for from Holt, in good faith and for valuable consideration, the plaintiffs are not entitled to recover, even though said Rodes & Priest, or either of them, knew at the time they so purchased the said goods of Holt, that he, Holt, had not paid plaintiffs the purchase money therefor.

The record shows that the court took the case under advisement till the 17th day of February, 1880, and on that day permitted plaintiffs, over the objection of defendants, to file an amended petition, and refused to continue the...