Mansur-Tebbetts Implement Co. v. Price

ELLISON, J. This is an action of replevin for a gasoline engine. Judgment was rendered for defendant in consequence of a peremptory instruction requiring a verdict for him. Defendant claims the property as constable under the levy of an execution against one Erank at the suit of M. B. Coleman. The evidence for plaintiff showed a sale to Erank by plaintiff and possession delivered to him. But plaintiff claims that the property in the engine never passed to Erank for the reason that there was annexed to the sale a stipulation as to how it should be paid for and that it should prove satisfactory to Erank. And that the stipulation as to payment had in no part been complied with and that the engine was not satisfactory to Frank. These conditions of sale were verbal and in no respect complied with section 5178, Revised Statutes 1889, they not being in writing, acknowledged and recorded. Coleman being a creditor of Frank had a right to regard the property as Frank’s free of any condition claimed. Collins v. Wilhoit, 108 Mo. 451; Oester v. Sitlington, 115 Mo. 247. The court was right in granting defendant’s peremptory instruction and the judgment will be affirmed. All concur.