Woodburn v. Cogdal

• Decision Date: 31 October 1866
• Citation: 39 Mo. 222
• Parties: JACOB WOODBURN AND THOMAS SCOTT, Appellants, v. JOHN COGDAL AND G. F. MEYER, Respondents.
• Court: Missouri Supreme Court

39 Mo. 222

JACOB WOODBURN AND THOMAS SCOTT, Appellants,

v.JOHN COGDAL AND G. F. MEYER, Respondents.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Court of Common Pleas.

The instructions given and refused were as follows:

Given for the plaintiffs--“If the jury find from the evidence that the said Yokum, Gaunt & Scroggins sold and delivered the staves to the plaintiffs, and that plaintiffs were at the time of the sale the owners and entitled to the possession of the said staves, and that the defendants afterwards without the knowledge or consent of plaintiffs took possession of said staves and carried them away, then you must find for the plaintiffs.”

Given by the court on its own motion, to which plaintiffs excepted--“In order to consider the goods Richard M. Gaunt may have received at the store of Meyer as earnest to bind the bargain for the sale of the staves, the goods must have been sold and purchased and accepted by said Gaunt on account of the sale of the staves.”

Plaintiffs' instructions refused:

I. If the jury believe from the evidence in the case that there remained anything to be done as between the defendants and the said Yokum, Gaunt & Scroggins to consummate a sale of the property mentioned in the petition, such as ascertaining the number or quantity by counting, the paying of the consideration or a part thereof, then there passed to said defendants from the said Yokum, Gaunt & Scroggins no title to the said staves, and you must find for the plaintiffs.

2. If the jury believe from the evidence in the case that the property mentioned in the petition was the property of Yokum, Gaunt & Scroggins, and that they sold and delivered the same to plaintiffs through the agents of plaintiffs, and that the defendants afterwards took possession of the said property without the knowledge or consent of plaintiffs and carried the same away, then you must find for the plaintiffs.

3. The jury are instructed that in order to constitute a complete sale of the property mentioned in the petition from Yokum, Gaunt & Scroggins to the defendants there must have been an ascertainment of the number or quantity of the staves by counting them, and there must have been an actual delivery of the same or a part thereof to the defendants.

4. The jury are instructed that the goods received by Richard M. Gaunt at the store of defendant Meyer, in order to constitute an earnest for the purchase of the staves, must have been so given by the defendants and received by the said Yokum, Gaunt & Scroggins on account of said staves unless they were so given and received by express agreement.

5. If the jury should find for the defendants, yet if they believed from the evidence in the case that the defendants have never paid the said Yokum, Gaunt & Scroggins for the said staves, and that the plaintiffs have paid to them the price and value of the said staves, they must estimate the damages at only the difference between the net cost of the staves at St. Louis and their value in the St. Louis market at the time they were sold.

6. If the jury believe from the evidence in the case that the said order was presented on the 22d day of March, 1863, at the store of G. F. Meyer by the payees therein named, for payment, and that payment thereof was refused or failed to be made; or if they believe from the evidence that it was agreed by and between the said defendant Cogdal and the said Yokum, Gaunt & Scroggins that at the time said note was made and signed by the said Cogdal and delivered to the said Yokum, Gaunt & Scroggins, the said Meyer should sign the same when the said order was presented to him for payment and that the said note was presented at the said store of said Meyer on the said 22d day of March, 1863, for the purpose of obtaining the signature of said Meyer, and that he refused or failed then and there to sign said note,--then from that time the said Yokum, Gaunt & Scroggins had the right to rescind the whole contract and retain the staves; and if they believe from the evidence that they from that time regarded and treated the contract as null and sold the said staves to plaintiffs, then they must find for the plaintiffs.

Defendants' instructions given:

1. The jury are instructed that a sale of chattels is good although no transfer of possession may have been made when the purchaser has given or paid any money or property as earnest to bind the bargain; if, therefore, the sellers of the staves, or one of them, received any goods in part payment for them, the bargain was binding without an actual delivery of the staves.

2. If the jury find from the evidence that Yokum, Gaunt & Seroggins sold and delivered the staves to defendant Cogdal, on credit, before Woodburn & Scott bought the same, then the jury should find for the defendant Cogdal, although they may also find from the evidence that Cogdal failed to pay the amount of said purchase.

3. If under the instructions and evidence the jury find for the defendant, the jury will assess the present value of the property, and also separately damages for the taking and detention of the same, from the time the said property was taken from the defendant until the day of trial.

To the granting of which instructions plaintiffs then and there excepted.

Krum & Decker, for respondents.

I. This court will not consider objections to testimony appearing in the record unless the grounds of such objection are stated to the court below and appear in the record, although general exceptions may have been reserved-- Rosenheim v. Am. Ins. Co., 33 Mo. 235 (affirming Field v. Hunter, 8 Mo. 131; Frost v. Prior, 7 Mo. 316; Dickey v. Malachi, 6 Mo. 186; Dozier v. Jerman, 30 Mo. 220); also Green v. Gallagher, 35 Mo. 228.

But it will be seen that the plaintiff had previously offered evidence by his witness Gaunt, in minute detail relating his interview with Meyer's clerk at the presentation of the order, and he has no right to complain that the clerk should state his version of the same interview. Besides it was entirely competent, being upon the question of the receipt of property by Gaunt on this sale to Cogdal; it was part of the res gestæ.

II. The court, at the instance of respondents, properly excluded part of the deposition of Gaunt on file as evidence in the cause; this part related to Gaunt's willingness, at the time of his examination, to return the note and draft. It was irrelevant and incompetent evidence.

III. Every instruction refused by the court was properly refused.

( a) That any counting of the staves (as declared by appellants'1st...