State ex rel. Boswell v. Rosenfeld
| Decision Date | 31 March 1865 |
| Citation | 35 Mo. 472 |
| Parties | STATE, TO USE OF CHARLES BOSWELL, Appellant, v. ISAAC ROSENFELD, Jr., et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Knox & Smith, for appellant.
The plaintiff contends, that the court erred in excluding so much of the testimony of the witness Frisbee as was derived from White's books.
The plaintiff further contends, that the court erred in excluding so much of the testimony of the witness Brimmer as was derived from the books of Boswell. Brimmer had been for years the book-keeper of Boswell, and continued to be so up to the 26th day of March, 1859. From his connection with Boswell himself, he must have been familiar with the transactions of White and Boswell and entered them in the books, and yet his mouth is shut by the court.
Upon the ruling of the court, the books of the merchants showing the whole of their dealings through a series of years, both agreeing as to the state of the accounts between the parties, are excluded, and the jury are left to presume fraud, when none exists in fact or in law.
The first instruction given is erroneous. Under the pleadings in this case the only question was that of ownership. The plaintiff was only required to prove a purchase of the property in question, to make out his case. If the property were sold to him, he became the owner. (2 R. C. 1855, p. 1232, § 12.)
The instructions were calculated to mislead the jury as to what constitutes a delivery and change of possession of property. There were 183,000 feet of lumber, worth $1,125, measured off and marked with the name of the purchaser. The lumber was separated from the other lumber in the yard, and the delivery and change of possession were complete. There was no conflict of testimony. As a matter of law, plaintiff contends that there was a complete sale and delivery of the lumber in question. As to what constitutes delivery, see Pars. on Contr., 442-3.
If the defendants relied on the want of change of possession, they should have pleaded the fact.
C. D. Drake, for respondents.
I. The court below properly ruled out the evidence of the contents of the books of White and those of Boswell. The books should have been produced. Their contents could be no evidence as against third parties.
II. The only point involved in the merits of the case, is the same as that decided in Kuykendall v. McDonald, 15 Mo. 416; and in State, to use of Hayden, v. Smith, 31 Mo. 566.
It is sought to reverse the judgment in this case upon two grounds: 1. That the court erred in the instructions given to the jury; and, 2. That the court erred in excluding so much of the testimony of Frederick Frisby as was based upon information derived from the books of White.
In the case of the State, to use of Hayden, v. Smith, 31 Mo. 566, we held “that under our statute relating to fraudulent conveyances,...
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...the property in the possession of the vendor. Kuykendall v. McDonald, 15 Mo. 416; The State to use v. Smith, 31 Mo. 566; The State to use v. Rosenfeld, 35 Mo. 472. But revisers of our statute law, in 1865, changed the reading of the section, so as to make it read precisely as the first clau......
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