Patchin v. Biggerstaff

• Decision Date: 19 April 1887
• Citation: 25 Mo.App. 534
• Parties: DANIEL PATCHIN, Respondent, v. RICHARD M. BIGGERSTAFF, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 534

DANIEL PATCHIN, Respondent, v. RICHARD M. BIGGERSTAFF, Appellant.

Court of Appeals of Missouri, St. Louis.

April 19, 1887

APPEAL from the Knox County Circuit Court, BEN. E. TURNER, Judge.

Reversed and remanded.

O. D JONES, for the appellant: It was error to admit the plaintiff's evidence of the agreement between himself Sage, and Morris, in the defendant's absence. It is hearsay. Reed v. Pelletier, 28 Mo. 173; Coble v McDaniel, 38 Mo. 363; O'Neil v. Crain, 67 Mo. 250; Hambright v. Brockman, 59 Mo. 52; The State v. Sutton, 64 Mo. 170; Darrett v. Donnelly, 38 Mo. 495. On the plaintiff's own testimony at the last, it was an incomplete sale. Boutwell v. Warner, 62 Mo. 350. Sage was the owner, subject to the condition of paying the purchase money. Holliday v. Lewis, 15 Mo. 406; Cross v. Halett, 53 Mo. 397; Boutwell v. Warner, 62 Mo. 350.

L. F. COTTEY, for the respondent: The statements of a party in possession of property, as to the nature of his possession, form part of the res gestae, and are admissible in evidence. The State to use v. Schneider, 35 Mo. 533; Darrett v. Donnelly, 38 Mo. 492; Thomas v. Wheeler, 47 Mo. 363; Colt v. LaDue, 54 Mo. 486; Burgert v. Borchert, 59 Mo. 80; Degenhart v. Schmidt, 7 Mo.App. 117; Burns v. Peck, 17 Mo.App. 580. Replevin will lie against the purchaser of a chattel from one who has tortiously obtained possession thereof. Welker v. Wolverkuehler, 49 Mo. 35.

OPINION

THOMPSON J.

This was an action of replevin for a horse. The answer was a general denial, and a separate count, stating that the defendant bought the horse in good faith and for value of one Sage, to whom the plaintiff had entrusted it to be sold or delivered, or to be sold and delivered, and claiming to hold the horse as an innocent purchaser. There was a trial before a jury and a verdict and judgment for the plaintiff, from which this appeal is prosecuted.

It appeared at the trial that the plaintiff agreed to sell the horse to one Sage, who was a buyer of horses; that Sage bought horses principally for the defendant, the defendant generally allowing him two dollars advance upon the price paid for the horses which he bought for him; that, sometimes, he declined to pay him as much as he had paid for them, when they were not satisfactory; that one Morris kept a store at a town called La Belle, and was in the habit of assisting Sage in his horse-buying transactions, by advancing money to him when necessary, and holding the horses until Sage procured the money to reimburse him; that the horses, when so held, were held in a stable kept by two brothers named Halderman, under an agreement between them and Sage. Morris seems to have had no special interest in Sage's transactions, and seems to have assisted Sage in this way upon the view that Sage's operations brought business to the town and benefitted trade.

The plaintiff's evidence was to the effect that he agreed to sell the horse in controversy for one hundred and fifty dollars; that he brought the horse to La Belle for the purpose of delivering it to Sage; that, after arriving at La Belle, becoming distrustful of Sage, he declined to deliver the horse to Sage, but consented to deliver it to Morris, under an arrangement between the plaintiff, Morris, and Sage, whereby Morris agreed to hold the horse in Halderman Brothers' stable until Sage should pay for the same, and either to return to the plaintiff the horse, or hand over to him the one hundred and fifty dollars, which Sage had agreed to pay the plaintiff therefor; that Halderman Brothers had notice of this arrangement; that, nevertheless, Sage, about four o'clock on the following morning, without the knowledge or consent of the plaintiff, or Morris, took the horse out of the stable, drove it to another place, and there sold it to the defendant, Biggerstaff. Sage, at the same time, took from the stable two other horses, which he had bought of other persons on credit. He sold the three horses to Biggerstaff for the aggregate price of three hundred and seventy-five dollars. He was then in debt to Biggerstaff in the sum of two hundred and seventy-five dollars, which the latter had advanced to him, and Biggerstaff settled with him by taking the horses and giving him his check for one hundred dollars. Sage collected this one hundred dollars, gave fifty dollars of it to his daughter, and, with the other fifty dollars, left that part of the state. He remained away for a considerable period of time, when he voluntarily returned and was arrested, and, it would seem, prosecuted for larceny. What became of the prosecution does not appear, nor is it material.

On the other hand, the defendant's testimony, chiefly that of Sage, whose character was impeached by several witnesses, and sustained by none, was to the effect that the plaintiff had made an out-and-out sale of the horse to him (Sage), and had delivered the horse to him, saying that he would trust Sage for the purchase money; that the horse had been put, by Sage, into the stable of Halderman Brothers, under the general arrangement which he had with them, by which they kept his horses at a reduced price; that Halderman Brothers had no notice of any arrangement by which the horse was to be held in their stable until Sage should pay the plaintiff for it, and that Sage took the horse early in the morning, in the regular course of his operations, as he had often done before, with the other two horses, and drove them to Biggerstaff's and sold them, as above stated. There was no evidence tending to show any bad faith on the part of Biggerstaff in the purchase of the horse, and we do not understand that it is claimed that he did not act in entire good faith, supposing that the horse belonged to Sage.

Leaving out other matters of detail, it is quite obvious that, if the jury believed the plaintiff's testimony, they must have concluded, under proper instructions, that the plaintiff had never delivered his horse to Sage, and had never parted title with it. A conditional delivery to Morris would not have been a delivery to Sage, until the condition had been complied with. On the other hand, if they had believed that the plaintiff had delivered the horse unconditionally to Sage, trusting Sage, or trusting Morris, or trusting both Morris and Sage, for the purchase money, then, under proper instructions, they must have concluded that the title to the horse was in Sage at the time when he sold it to Biggerstaff, and their verdict would have been for the defendant. This being the case, we shall notice the substantial points relied upon by the appellant.

I. The first point is, that the court erred in admitting testimony as to...