Spalding v. Taylor
| Decision Date | 31 January 1876 |
| Citation | 1 Mo.App. 34 |
| Parties | CHRISTOPHER W. SPALDING, Respondent, v. PHILIP C. TAYLOR, Appellant. |
| Court | Missouri Court of Appeals |
1. Testimony being properly introduced tending to show that a written contract, absolute on its face, is in fact a mortgage, it is erroneous to instruct the jury to disregard such oral testimony as may tend to vary the terms of the written contract.
2. The interest of a mortgagor of personal property in the hands of the mortgagee is not subject to seizure under execution against the mortgagor.
APPEAL from St. Louis Circuit Court.
Affirmed.
G. Pollard and D. W. Paul, for appellant, cited: 1 Pars. on Con. 430; 1 Greenl. on Ev., sec. 285; Nedvidek v. Meyer, 46 Mo. 600; Dilworthy v. McKilsey, 30 Mo. 149; Fallon v. Manning, 35 Mo. 271; Free v. Vogel, 40 Mo. 149.
R. S. Voorhis, for respondent, cited: 3 Pars. on Con. 249, and cases referred to in note; Park v. Hall, cited by Parsons, 2 Pick. (Mass.) 206; Delnerth v. McKeley, 30 Mo. 149; Hill. on New Tr., ch. 8, sec. 32, p. 152; Wallard v. Hilliard, 7 Wis. 627; Buckman v. Greenleaf, 48 Me. 374.
This was a proceeding in the nature of replevin under our statute, begun by respondent against appellant, for certain personal property, partly live stock.
The plaintiff, Spalding, had given to one Phillips a bill of sale, sealed and acknowledged, and which was duly recorded, for the property in question. The consideration expressed in the deed is a certificate of stock, but plaintiff was allowed to show on the trial that the real consideration was a sixty-day note. The evidence shows that plaintiff was to retain possession of this property until the note was paid; that it was not paid at maturity, and still remained unpaid at the time of trial. That, whilst the property was thus in the possession of plaintiff, as mortgagee, it was levied upon by defendant, sheriff of St. Louis county, at the suit of one A. S. Taylor, as the property of said Phillips. Plaintiff replevied the same out of the hands of the sheriff. In the replevin suit judgment was for defendant, at special term, and, on appeal to general term, that judgment was reversed; from which judgment of general term defendant appeals to this court.
On the trial the court granted the following instruction for defendant:
“The jury will disregard the testimony of the plaintiff in the case in relation to the contract of sale of the property in controversy from him to Phillips, in so far as it tends to vary the effect of the written contract in evidence, if they believe it does so vary the terms of said contract.”
This was calculated to mislead the jury. It tells the jury to construe a written contract, and to...
To continue reading
Request your trial
- State v. Morgan
-
F. E. Creelman Lumber Co. v. De Lisle
...owned or had the right to the possession of the lumber at the time the demand was made by plaintiff on De Lisle Bros. & Boon for its delivery. Spalding v. Taylor, 1 Mo. App. 34; Miller v. Dunlap, 22 Mo. App. 97; The St. Louis Gaslight Co. v. Ins. Co., 33 Mo. App., loc. cit. 385; Stewart v. ......