Stoecker & Price Storage & Auction Co. v. Cooper

• Decision Date: 06 April 1920
• Docket Number: No. 15656.,15656.
• Citation: 220 S.W. 972
• Parties: STOECKER & PRICE STORAGE & AUCTION CO. v. COOPER.
• Court: Missouri Court of Appeals

220 S.W. 972

STOECKER & PRICE STORAGE & AUCTION CO. v. COOPER.

No. 15656.

(St. Louis Court of Appeals. Missouri.

April 6, 1920.

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

"Not to be officially published."

Action by Stoecker & Price Storage & Auction Company against M. Cooper. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Earl M. Pirkey, of St. Louis, for appellant.

Louis B. Sher, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover the sum of $35 alleged to have been paid by plaintiff to defendant as the purchase price of certain goods sold by defendant to plaintiff, to which, it is said, defendant had no title. The action was instituted before a justice of the peace, and on appeal to the circuit court, and a trial there de novo before the court and a jury there was a verdict and judgment for the defendant, from which plaintiff prosecutes this appeal.

The statement filed before the justice of the peace avers that in 1912 defendant, representing that he was the owner of certain property located at 2108 Chestnut street, in the city of St. Louis, sold the property to plaintiff for the sum of $35, which plaintiff paid him; that defendant did not in fact own the property, or any part thereof, and plaintiff was thereafter compelled to surrender, and did surrender, the property to the owner thereof. After averring demand upon the defendant for the money thus paid to him, judgment is prayed accordingly.

The evidence for plaintiff tended to show that in April, 1912, the defendant, who was a dealer in secondhand goods and known to plaintiff's president as such, came to the latter and stated that he had a certain lot of goods at 2108 Chestnut street which he had purchased, asking if plaintiff could handle them. Plaintiff thereupon sent a man to the place to inspect the property, who reported that the property was worth $35. Plaintiff thereupon offered defendant $35 therefor, which offer was accepted; whereupon plaintiff sent another man, one Burns, to pay the money and get the goods, which was done. The evidence shows that when Burns obtained the goods, one Hardy, a negro, was present, and that at defendant's direction Burns paid $30 of the money to Hardy and $5 to defendant. The goods were then taken to plaintiff's place of business. They were subsequently claimed by one Tillie Griffin, who testified as a witness for plaintiff. It appears that Tillie Griffin, through her counsel, made such showing concerning her title to the property that plaintiff surrendered the same to her. The evidence goes to show that Hardy was employed by Tillie Griffin, and that, in her absence, he removed the property in question, together with other property, from her premises, and disposed of all of the same.

The defense asserted is that in the transaction with defendant's president defendant did not claim to be the owner of the goods, that Hardy asked defendant to dispose of them for him, and that defendant reported the matter to plaintiff and made an arrangement with plaintiff for a commission in case the latter bought the property.

But two points are urged here for a reversal. One is that the court erred in giving an instruction on the credibility of the witnesses and the weight to be given to their testimony. This instruction is as follows:

"The jury are instructed that they are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony. In determining such credibility and weight they will take into consideration the character of the witness, his manner on the stand, his interest, if any, in the result of the trial, his relation to or feeling towards the parties to the suit, the opportunity which the witness had for knowing the facts testified to by him, the probability or improbability of his statements, as well as all the facts and circumstances given in evidence. In this connection you are further instructed that if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, you are at liberty to reject all or any portion of such witness' testimony." (Italics ours.)

It is conceded that there was such conflict in the testimony as to warrant the giving of an instruction of this general character under the rule stated in Robert v. Rialto Building Co., 198 Mo. App. 121, 199 S. W. 428. It is argued, however, that that portion of the instruction italicized above renders the instruction fatally erroneous. This contention is predicated upon the language of Commissioner Brown in Keeline v. Sealy, 257 Mo. 527, 165 S. W. 1088. We have had occasion to notice that opinion in a number of cases, some of which are cited in Robert v. Rialto Building Co., supra. In the...