Sears v. Wall

• Court: Missouri Supreme Court
• Writing for the Court: WAGNER
• Citation: Sears v. Wall, 49 Mo. 359 (Mo. 1872)
• Decision Date: 29 February 1872
• Parties: WILLIAM H. SEARS, Defendant in Error, v. J. K. WALL AND A. RENEAU, Plaintiffs in Error.

49 Mo. 359

WILLIAM H. SEARS, Defendant in Error,

v.J. K. WALL AND A. RENEAU, Plaintiffs in Error.

Supreme Court of Missouri.

February Term, 1872.

Error to Buchanan Circuit Court.

Strong & Chandler, for plaintiffs in error.

Woodson, Vinyard & Young, and Fred. Van Waters, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

This was a proceeding under the statute for the claim and delivery of personal property, wherein the plaintiff asked for the possession of, and claimed title in himself to, two horses. Upon the filing of the necessary bond they were duly delivered to him; and on the trial, under the evidence and instructions, they were adjudged to be his. Plaintiff acquired title to the property under an agreement with the defendants, by which he sold to them the contents of an ice-house supposed to contain 375 tons. Defendant agreed to pay $800 for the same; the horses in controversy to be taken at $435, and the remainder to be paid in cash. The plaintiff agreed that if he failed to deliver all the ice, he would forfeit all claims due him; and that he would drive, feed and keep the horses in good order at his own expense. The horses were placed in the plaintiff's possession, and remained there until they were illusively obtained by the defendants. Whether the contract was carried out and the ice delivered in accordance with its terms, was a question of fact, and the jury found in the affirmative.

If the instructions fairly expounded the law and were not calculated to mislead, then the judgment must be affirmed. The third and fourth instructions given for the plaintiff were not necessary, but they were harmless.

There was no warranty contained in the agreement as to the quality of the ice, and no covenant against loss by shrinkage. The ice was sold as it was packed in the house, and seems to have been of the average quality put up that year.

The first instruction given at the instance of the plaintiff is not erroneous, as supposed, because it tells the jury to find for the plaintiff if they believe from the evidence that the horses were his. For it is connected with and immediately followed up by a further instruction which asserts that if the defendants delivered the horses to the plaintiff in part payment of the $800 mentioned in the contract, then the horses were his, provided he delivered all the ice in the ice-house, with the exception of some which the evidence showed that the defendants had used or authorized to be used....