Schenck v. Sautter

• Decision Date: 31 October 1880
• Parties: SCHENCK v. SAUTTER, Appellant.
• Court: Missouri Supreme Court

73 Mo. 46

SCHENCK

v.SAUTTER, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

REVERSED.

A. M. Allen for appellant.

1. ESTOPPEL: ratification.

NORTON, J.

This was a suit by plaintiff to recover a musical instrument, (a six stop organ,) from defendant, in which he had a judgment in the special law and equity court of Jackson county, (on appeal from a justice of the peace,) from which defendant has appealed. The evidence clearly established the following facts, and there was none tending to prove the contrary. The defendant had an execution issued against the plaintiff, on a judgment obtained before a justice of the peace. While it was in the hands of the constable, defendant went, with Allen McGee, to plaintiff's residence, and his wife, in his absence, gave the organ in payment and satisfaction of the judgment, and took a receipt from defendant to that effect. The husband returned home Sunday evening after the transaction, and was fully informed by his wife of what she had done. Next morning he went to Kansas City, employed a lawyer and instituted this suit, but before the service of the summons, visited the justice of the peace who issued the execution against him, and asked what had become of the execution, and was told by the justice that the constable had it. While he was at the justice's office, the constable came, and in the presence of the plaintiff, and with his knowledge, made his return on the execution, that it was satisfied in full; and, expressing no dissatisfaction with what his wife had done, plaintiff remarked: “I suppose I can now sell my property, as the sword is now raised from my head,” alluding, as he states, to “the sword of Damocles.” There is not a particle of evidence showing that he made any objection, when his wife told him of the sale of the organ, and the only evidence of his dissent from it, is furnished by his instituting this suit. He never offered to return the receipt, or to have the return on the execution corrected.

His conduct was reprehensible in the extreme. It was a flagrant attempt to gain an unconscionable advantage of his creditor. He stood by and permitted the execution to be returned satisfied, knowing that no money had been paid upon it, and that it was so returned in consequence of the transaction between his wife and the defendant. If he intended to contest the right of the latter to the organ, it was his duty, as an honest...