Douglas v. Wolf

The opinion of the court was delivered by Kinsman, C. J.:

This was an action of replevin brought by the-plaintiff in error against defendants in error for certain bonds of the city of Leavenworth. The bonds were issued to pay one Bullen for work done for the city. The plaintiff’s testimony. tended to show a general and also a special ownership of the bonds in himself, and a right to the possession thereof. Tbe defendants’ testimony tended to prove that the bonds had been taken on execution against Bullen, and sold at sheriff’s sale, and bought by Madam Wolf, in whose favor the execution was. The testimony of defendants was also intended to show that the purchase of the bonds of Bullen by plaintiff was collusive, and made for the purpose of screening Bullen’s property from the execution.

1 'PbACTIC.15. admisible. I. In the course of the trial it-became necessary for the defendants to show that the judgment, on which the execution issued against-Bullen, on which the ° bonds were seized, had not become dormant lapse of time; and to do this, they at *92 tempted to prove that executions had been issued and returned from time to time, so as to keep the judgment alive. They did not offer the executions in evidence, but introduced the clerk, the proper custodian of these papers, who testified that he had made search for them in his office, and could not find them; that he looked for an hour and a half, assisted by two of defendants’ counsel. Thereupon the court permitted the docket entry of the issue of the executions to be read, and the return made thereon. We think this was correct. The search was such as satisfied the court that the papers could not be found and produced. It was subsequently proven that the papers had been missing for two or three years.

2. instrucation; when no em>r. II. It is claimed there was error in giving and refusing instructions, and our attention has been mainly directed to this part of the case. Of the instructions asked by the plaintiff, and refused, it may be observed, that instructions to the same purport as some of them had already been given by the court in his general charge, and it was neither necessary nor proper to repeat them. Some of the others needed limitations or qualifications to make them applicable to the issues and testimony in the cause; and therefore there was no error in refusing to give them. They must be good as asked* or it is not error to refuse them.

_huUom nMtoteSeí'ís8 III. One instruction given at the request of defendants, was to the effect, that if the transaction between Douglas and Bullen was a mortgage, or intended as such, it was void. This instruction ought not to have been given. There was no testimony tending in the slightest to show a mortgage, or that either of the parties claimed it as a mortgage. *93 The instruction was likely to confuse the jury by assuming that there was some evidence on that point; but we cannot say it would so mislead the jury as to make a new trial necessary.

Agent : interest can nmintain replevin. IV. The plaintiff’s evidence tended to show that he had been furnished money by one Harwood to buy such ■bonds as these in controversy for him: Har- * wood was to allow plaintiff fifty-five cents on d0nar for the bonds, and plaintiff might buy for as much less as he could! On this point the court instructed the jury as follows: “If the plaintiff purchased the bonds for one Harwood, as his agent, and with Harwood’s money, then he cannot recover; but if he purchased them on his own account, though for the purpose of filling a contract which he had with Harwood, he is notthereby prevented from maintaining this action.” And the court refused to give this instruction: “If the j ury find that Douglas purchased the bonds for Harwood, and bought the same in his own name, he has a right to sustain an action in his own name to recover possession of them.” This instruction ought to have been given. It was applicable to the evidence. If Douglas bought the bonds for Harwood, with Harwood’s money, and bought them in his own name, then he was entitled to the possession, and had an interest in the bonds, because, by reason of the purchase in his own name, he had incurred a responsibility to Harwood greater than if bought in Harwood’s name. He stood charged with Harwood’s money. If he bought the bonds for him and in his name, then he might say to Harwood, “ I have bought your bonds, but they have been seized by the sheriff without fault of mine; you must look to him for them.” If bought in the name of plaintiff, he was responsible to *94 Harwood, for their delivery, and had to repossess himself of them by action, to enable him to make such a delivery. For refusing this instruction, the judgment is reversed. and a new trial awarded.

All the Justices concurring.