Woodburn v. Cogdal

Fagg, Judge, delivered the opinion of the court. The following general statement of the case will show the points presented for the consideration of the court. The defendant Cogdal being in possession of a certain quantity of staves, the plaintiffs, claiming to be the owners, commenced suit therefor in the Court of Common Pleas for [227] St. Louis county, under the provisions of that portion of the practice act relating to the claim and delivery of personal property. Meyer failed to appear and plead to the petition, and judgment was taken against him by default; but there was no further prosecution of the suit as to him, the case being tried by a jury upon the issues tendered by the separate answer of Cogdal. Both plaintiffs and defendant claim to be the owners of the property by purchase from the same parties in the State of Illinois. It is shown that Cogdal contracted with these parties sometime during the winter of: 1862 and 1863 to furnish him a quantity of staves, to be delivered on the bank of the Ohio river ; that on or about the 10th of March, 1868, the lot of staves in question, supposed to be about 17,000, were delivered as aforesaid, and Cogdal agreed to purchase them at $13 per 1,000, giving at the time an order on the said G. E. Meyer for $100, and executing his note payable in the month of May thereafter for the balance. The actual number, as shown by the note, was to be ascertained by the coopers’ count when the staves were taken to market; and the contract between the parties was that Meyer should also sign the note with Cogdal. The order and note were presented in due time at Meyer’s place of business, but he was not in, and his clerk having no money to pay the note endorsed an acceptance upon it in Meyer’s name, and directed the holder to call at a future day, when the amount would be paid and the note signed according to the agreement — all of which was satisfactory. A small amount of goods was taken by the holder of the order 'and note, and charged to Cogdal. There was no farther attempt to collect the amount of the order, or to procure Meyer’s signature to the note, but the staves were resold to the plaintiff in this suit; Cogdal in the meantime got possession of the staves and shipped them to St. Louis, where they were taken out of his possession by legal process. The real question for the jury was whether there was such a sale and delivery to Cogdal as to transfer to him the ownership of the property. We think it was fair [228] ly presented to the jury by the instructions, and if there appeared to be no other reason for disturbing the verdict the judgment of the court below would be affirmed. It will be unnecessary to comment upon each of the instructions separately. The instruction given at the instance of plaintiffs very fairly presented the question of the ownership of the staves at the time Cogdal took possession of them. It made no difference whether the plaintiffs claimed by purchase made in their own proper person or by agent, and the giving of the instruction based upon the theory of their purchase through an agent could really have made no difference in the finding of the jury. Two of the instructions asked by plaintiffs and refused were drawn upon the theory that the counting of the staves and an actual delivery were necessary to complete the sale ; they were manifestly improper. The testimony in relation to the counting of the staves tended to show that that was necessary only to ascertain how much would be due upon the note. The jury were told that a sale of personal property was good, notwithstanding there was no actual delivery, if anything had been paid to bind the bargain. Another instruction, designated in the bill of exceptions as number 4 of the series asked by plaintiff and refused by the court, is not very intelligible ; but the idea seems to have been that the goods sold to the holders of the note, in order to bind the bargain for the staves, must have been accepted upon an express agreement for that purpose. But the other instruction given for the defendant sufficiently covered this point, and in a more intelligible form. The last was in reference to the measure of damages. It asserted the rule to be upon a finding for the defendant, that his damages must be estimated at the difference between the price at which he had contracted for the staves and the price in the St. Louis market at the time they were sold. The court committed no error in refusing this instruction. However, the measure of damages was not correctly stated in the instruction given for the defendant, and the case must [229] be reversed and remanded for trial in accordance with the views herein presented. The true measure of damages in such cases is the value of the property at the time of seizure, with interest thereon at the rate of sis per cent, per an-num until the time of trial. Another point in reference to the admission of improper evidence is raised by the appellants’ brief, but will not be considered because the bill of exceptions fails to state the grounds upon which the testimony was objected to at the time of trial. It has been uniformly held by this court that such objections must be specifically shown by the record to entitle them to any consideration here. For the reasons above stated, the judgment of the court below will be reversed and the cause remanded. The other judges concur.