Sartin v. Saling

• Decision Date: 31 July 1855
• Citation: 21 Mo. 387
• Parties: SARTIN, Plaintiff in Error, v. SALING, Defendant in Error.
• Court: Missouri Supreme Court

21 Mo. 387

SARTIN, Plaintiff in Error,

v.SALING, Defendant in Error.

Supreme Court of Missouri.

July Term, 1855.

1. Evidence that the defendant advised a party, who either held or had disposed of a horse bought in good faith from a person having no title, not to make restitution upon demand, until he had inquired further into the matter, will not warrant an instruction based upon the hypothesis of his assenting to a continuance of the detention.

Error to Moniteau Circuit Court.

This was an action begun by Sartin against John Saling and Henry, his son, who was a minor, to recover the value of a mare, alleged in the petition to have been “seized, carried away and disposed of by the defendants to their own use.”

At the trial, the plaintiff offered evidence tending to show that, being the owner of the mare, he sold her to one Scott, who was living with him, upon condition that no title should pass until Scott cleared certain land, which he failed to clear; that, by his permission, Scott took the mare to go to the town of California, and there sold her, and that afterwards she was seen in the possession of Henry Saling; that, upon demand made by plaintiff for the mare, Henry said he had traded her off, but rather than have any difficulty ““would give her up;” and that his father, who was present, then said he believed Scott owned the mare when he sold her, and advised Henry not to give her up “until he had inquired further into the matter.”

The evidence of the defendants tended to show that the sale of the mare to Scott was unconditional, and that she passed from him through two or three intermediate purchasers to the defendant, Henry, who traded for her.

Upon this evidence, the Circuit Court gave the following instruction for the plaintiff, numbered as the second:

“Although John Saling may not have traded for the mare, yet, if Henry Saling did, and John, the father of Henry, encouraged him to keep her, or trade her off, or not give her up, he is equally liable with Henry Saling.”

There was a verdict for the plaintiff. During the pendency of a motion for a new trial the suit was dismissed as to Henry Saling. John Saling afterwards sued out this writ of error.

Parsons, for plaintiff in error. John Saling's advice to his son cannot make him liable as a co-trespasser, either in the caption or detention of the mare. (11 Phill. Ev. 187.)

Gardenhire, for defendant in error. Every one who advises or countenances the commission of a tort before it is done, is liable, although it is not done for his benefit; and so if he advise or countenance its continuance. It is only when the approval is not until after it is done, that it is necessary to show it was for his benefit. (1 Chitt. Pl. 67; 11 Barb. Sup. Ct. Rep. 642; 7 Mo. Rep. 175; 10 Wend. 110; 8 Pick. 333; 2 Litt. 240; 5 Ohio, 231.) In this case the jury found that Henry Saling had not parted with the mare when demand was made, as under another instruction given, this finding was necessary to the verdict; so that John Saling advised a continuance of the trespass, and it was not necessary to show that it was for his benefit. But it was shown. He was the father of Henry Saling, who was a minor, and was entitled to his earnings.LEONARD, Judge, delivered the opinion of the court.

The second instruction, given at the instance of the plaintiff, is erroneous. The plaintiff, according to his own proof, let Scott have the mare, either under a loan or upon a conditional sale, that was to vest the title in him upon his doing certain work he had contracted to do for the plaintiff. The mare was afterwards seen in the possession of Henry Saling, a minor son of the...