Vanzant & Co. v. Hunter

• Decision Date: 30 April 1821
• Citation: 1 Mo. 71
• Court: Missouri Supreme Court
• Parties: VANZANT & CO. v. HUNTER.

1 Mo. 71

VANZANT & CO.

v.HUNTER.

Supreme Court of Missouri.

April Term, 1821.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

MCGIRK, C. J.

This was an action of trover, brought by Vanzant & Co. v. Hunter, for eighty-six barrels of flour; plea, not guilty; issue joined and found by the court for the plaintiffs. This cause is brought here by appeal, on a case agreed, which is, in substance, as follows: That before the commencement of this action, one Bailey directed one Janes to proceed with a boat, then under his command, to Herculaneum, and there receive on board of the said boat, from the plaintiffs, a large quantity of flour, to be carried to St. Louis; Janes did accordingly receive said flour from the plaintiffs at Herculaneum, and put the flour on board of said boat, and at the time of the delivery of the flour the plaintiffs directed Janes to deliver the flour to Wilkins or Catron at St. Louis. (Wilkins and Catron are two of the plaintiffs.) After the boat had proceeded on her way from Herculaneum, Bailey came on board and took command of the boat; when the boat and cargo arrived at St. Louis, Bailey sold the flour to Hunter, he (Hunter) not knowing of the plaintiffs' claim thereto; that after eighty-six barrels thereof were delivered to Hunter, Catron, one of the plaintiffs, called on Hunter and demanded the flour of him for the plaintiffs. Hunter refused to give it up, alleging that he had bought of Bailey, to whom it belonged; and said he had paid for it. After some dispute about the title of the flour, it was agreed between Catron and Hunter, that Hunter should keep the flour, and if the plaintiffs should show that it was their property, then Hunter should pay the plaintiffs therefor at the current price, which was $8.50 or $9 per barrel; and Hunter sold some of the flour, after wards, to one Hull. On this state of the case, the defendant in the court below insisted that the plaintiffs could not recover on this form of action, on the ground that the possession of the defendant, and the detention of the flour by him, became lawful by the acquiescence of the plaintiffs, and that the action of assumpsit was only proper in this case; second, that the plaintiffs, before they commenced this action, ought to have shown the flour belonged to them; third, that the evidence adduced on the trial was insufficient in law to establish the property in the plaintiffs: all of which was by the court overruled, and judgment for the plaintiffs; to reverse which, the cause was brought here, and the same points insisted on here by the appellant.

The first question is, could the plaintiffs recover in this form of action? The agreement...