Kuhler v. Tobin

Ellison, J. —This action is for the' possession of forty-two head of hogs. A demurrer to the evidence for plaintiff was sustained and he has appealed. It appears that defendant had' fifty-four head of' hogs running with some cattle in a lot on his farm, and that he sold them to plaintiff on December' 2, at five cents per pound, to be delivered when defendant shipped his cattle, which was to be between the date of sale and the first of March thereafter. An incomplete memorandum in writing was made of the contract; $10 was. paid thereon and the hogs were to be weighed and delivered at plaintiff’s house. There was a large advance in the price of hogs and defendant, without, the consent of plaintiff, disposed of ten or twelve of them, before this suit was brought. After this action, was instituted and just before service of the writ, defendant told plaintiff that the hogs were getting sick and for him to come and take them, plaintiff replying that he would. Before the suit was brought, plaintiff had demanded the hogs. When plaintiff had the writ levied, defendant was in the act of driving the hogs off, and they were taken on the highway by the sheriff. Our opinion is that the court committed error in sustaining the demurrer to the evidence. As between these parties, under the circumstances detailed in evi [578] dence, the property in the hogs passed to the plaintiff at the time the contract was executed. Toney v. Goodley, 57 Mo. App. 241, 247. And plaintiff’s right to the possession accrued when defendant made a breach of his contract. There is something (though very indefinite) in plaintiff’s abstract, as to the hogs having been sold to one Wren, and of his being in possession when they were taken by the sheriff. However this may be, this action is between the original parties, and if Wren, as a third party, has any rights in the controversy, he will doubtless have an opportunity of asserting them. The judgment is reversed and the case remanded. All concur.