Talbot's Ex'r v. Mearns

• Decision Date: 31 July 1855
• Citation: 21 Mo. 427
• Parties: TALBOT'S EXECUTOR, Respondent, v. MEARNS, Appellant.
• Court: Missouri Supreme Court

21 Mo. 427

TALBOT'S EXECUTOR, Respondent,

v.MEARNS, Appellant.

Supreme Court of Missouri.

July Term, 1855.

1. The sale bill made out and sworn to by the clerk at an administration sale, though prima facie, is not conclusive evidence, in a controversy between two parties claiming to have purchased the same property at the sale.

Appeal from Montgomery Circuit Court.

The case is stated in the opinion of the court.

Cornick & Jones, for appellant.

G. Porter, for respondent.RYLAND, Judge, delivered the opinion of the court.

David J. Talbot sued James Mearns, before a justice of the peace, on an account for one steer at $9. The plaintiff obtained judgment before the justice for $6. The defendant appealed to the Circuit Court. During the pending of the suit in that court, the plaintiff died, and Thomas Talbot, his executor, was substituted in his stead. The plaintiff obtained judgment also in the Circuit Court, for the sum of $4 45 and costs. The defendant moved for a new trial, which being overruled, he excepted, filed his bill of exceptions, and brings the case here by appeal.

The only point for the consideration of this court is in regard to an instruction which the record states was considered as asked by the defendant, and refused by the Circuit Court.

It seems that the plaintiff's testator, David J. Talbot, and the defendant, James Mearns, had purchased some cattle at the sale of the estate of Joseph Oliver, deceased, by his administrator, in August, 1851; that Mearns contends he purchased seven head of cattle, including the steer sued for in this action. Talbot contends that Mearns carried off and has in his possession one of the steers that he had purchased at the sale. So the action depends upon the ownership acquired at that administrator's sale.

The plaintiff produced as a witness, James Nunnelly, who said he was the clerk of the sale, of the personal property of Joseph Oliver's estate, made in August, 1851. Here a paper was shown to the witness, who said it was in his handwriting, and was the sale bill of that sale; that it was correct, and that the cattle were sold as therein stated; that David T. Talbot and the defendant, Mearns, bought just such cattle as were set down in that sale bill. On cross-examination, this witness said the paper shown him was not the original paper; that his was a correct copy; that he had drawn it off the day after the sale, the original being somewhat blotted; that Mr. Best, the administrator of the estate of Joseph Oliver, assisted him in copying. Mr. Best read from the original, while he (witness) copied; that he believed the copy was correct. They had taken much pains, though they were liable to mistakes, as other men are; but he believes there were none. In the paper first shown them, among a long list of articles sold, purchasers' names and prices, I find the following:

“1 white and 1 black steer, James Mearns,

$7 50

2 spotted heifers, James Mearns,

6 00

1 red heifer, James Mearns,

4 25

1 red heifer, James Mearns,

6 25.”

The witness was then shown another paper by the defendant's counsel. Witness said, this is his handwriting, and is the original sale bill: he saw nothing on it to prove to him that it had been or had not been altered. He stated he was present when all the cattle were sold, and put them down on the sale bill as they were sold. Talbot and Mearns bought the cattle just as set down on the sale bill: he does not think Mearns bought seven head; but that he bought six, as stated in the sale bill. Defendant's counsel called witness' attention to the two sale bills. The copy stated that Mearns bought one heifer at $6 25; the original, that he bought two heifers at $6 25. After examining them, witness said he believed the original was correct, for that he and the administrator had determined to sell them in pairs, and they were so sold when it could be done; for this reason, and because the one on one bill and the two on the other were at the same price, he believed there was a mistake in copying. On the last paper shown to the witness, which witness said was the original sale bill, I find the following items:

1 white and black steer, James Mearns, note,

$7 50

2 pided heifers, James Mearns, note,

6 00

1 red heifer, James Mearns, note,

4 25

2 red heifers, James Mearns, note,

6 25

In the first sale bill offered, this last item is but one red heifer; in the last, it is two red heifers; but I find the first item, in the first sale bill, is “1 white and 1 black steer;” in the last, it is “1 white and black steer.” I have been thus particular in noticing the evidence in regard to these sale bills. There was other evidence conducing to show that Mearns purchased seven head of cattle; also, evidence conducing to show that he (Mearns) had taken the red steer of Talbot from the place of sale, when he came to drive his cattle home, after they had returned.

After the evidence had been closed, the defendant asked for the following instruction: “The description of the farm stock in the said bill of an administrator's sale, made out by the clerk of such sale, and sworn to, is not evidence in a suit between two buyers...