Smith v. Bell

• Decision Date: 31 January 1846
• Citation: 9 Mo. 873
• Parties: SMITH v. BELL & STEPHENS.
• Court: Missouri Supreme Court

9 Mo. 873

SMITH

v.BELL & STEPHENS.

Supreme Court of Missouri.

January Term, 1846.

APPEAL FROM PLATTE CIRCUIT COURT.

NAPTON, J.

This was an action of trover brought by Smith to recover the value of a pair of burr mill-stones, alleged to have been converted by the defendants to their use. The facts of the case appear to have been as follows: One Cornman deposited the mill-stones and irons appurtenant thereto, in the warehouse of one Cunningham, in the town of Weston, and Bell & Stephens, the defendants, succeeded Cunningham, in the occupation of the warehouse, and in the custody of said mill-stones as warehousemen. Whilst the mill-stones were in his custody, Cornman sold them to one Whitmore, and Whitmore sold them to the plaintiff, Smith. It was the understanding on both sales, that Cornman was to pay the charges on said mill-stones. Shortly after the sale to the plaintiff, the plaintiff and Whitmore called on Bell, one of the defendants, to get the mill stones, but they were told that there were charges on them, and they would retain possession until the charges were paid; upon being informed that Cornman was to pay the charges, the defendants still declined letting the mill-stones go, until their charges were paid. Bell however, acknowledged at the time of this refusal, that he was well aware of the sale from Cornman to Whitmore, and of Whitmore to plaintiff, and that plaintiff was justly entitled to the stones. Upon another occasion the plaintiff again applied to Bell for the stones, and upon his again refusing to let them go until the charges were paid, the plaintiff agreed to pay the charges and give an indemnifying bond, and a day was fixed when plaintiff was to pay the charges and give the bond, and the defendants were to deliver the stones. The plaintiff attended on the appointed day, but Bell had gone to Liberty; and on that night Bell returned on a boat, and delivered the mill-stones to one Utt, who took them on board the same boat Bell had left.

A witness testified that he called upon defendants, and told them, at plaintiff's request, that he, plaintiff, would sue them, to which Bell, one of the defendants, replied, “he did not care a damn; he had delivered them upon Cornman's order to Utt, and that Utt had paid the charges on them, and given an indemnifying bond.” This witness further stated, that the day after the one set by Smith and Bell for the delivery of the mill-stones to Smith, Smith came in for the purpose of completing the arrangement which had been previously made between them.

Whitmore testified, that he had bought the stones of Cornman for $300, and sold them to Smith, the plaintiff, who paid him; that he and Smith went to defendants, and stated the contract to them.

Cornman testified, that he sold the said stones to Whitmore, and Whitmore to Smith; but subsequently to the sales aforesaid, had notified defendants not to deliver the stones to the plaintiff; and he afterwards gave Utt an order for the same,...