Gray v. Parker

1. Practice — New Trial — Exceptions.—Where the hearing of amotion for a new trial is continued by the court, the bill of exceptions may be signed at the term at which the motion is determined. (See ante Riddlesbarger et al. v. McDaniel et al., p. 138, P. 1.) 2. Practice — Action for Delivery of Personal Property. — In an action for the delivery of personal property, where the defendant pleads only that he did not take the property, the plaintiff’s title is admitted; but it is incumbent on him to prove that the defendant had the goods. Where the plaintiff’s title is also denied, he must further show a general or special property in the goods, and the right of an immediate and exclusive possession. 3. Property — Title—Accession.—The law makes a distinction in acquiring title to property by accession, between a wilful and an involuntary wrongdoer. As the law does not permit any man to take advantage of his own wrong, the former can never acquire any title, however great the change wrought in the original article may be, while the latter may. But the doctrine of confusion and accession of goods does not apply to a case for the recovery of specific chattels, the identity of which must be shown before they are liable to seizure. If they cannot be identified, an action must be brought for their conversion.

Appeal from St. Louis Circuit Court. This was a suit to recover possession of some trunks and valises. It appeared in evidence that Jacob Parker had certain notes against Adolphus Parker and one Murphy; that he sold them to plaintiff for a “ patent right”; that Parker (of Parker & Murphy) sold to plaintiff certain trunks or valises in satisfaction of said notes; that said trunks and valises afterwards disappeared from the possession of plaintiff, and plaintiff alleged that he found them in the possession of defendants Jacob and Albert Parker, in a store on Fifth street, in St. Louis, from which place they were replevied. The case was tried before a jury, and there was evidence tending to show that the trunks taken by replevin from Fifth street were the trunks delivered to plaintiff by Parker & Murphy, and also evidenee tending to show that at least some of the trunks and valises so taken could not be the trunks and valises delivered as above to plaintiff. The defendants claimed that the pretended transfer of the notes from Jacob Parker to plaintiff, and the pretended sale of the trunks, was all a sham and without consideration. The defendant Albert Parker had no hand in the pretended sale, and claimed a part of the trunks and valises replevied as his own, and offered evidence tending to prove that they were made on Fifth street, at his store. Defendants then asked the court to give the following instructions, which were given: 1. If the jury believe from the evidence that the trunks and valises taken by the officer from the store on Fifth street are not the same trunks and valises that were delivered to the plaintiff at Murphy & Parker’s store on Second street, and afterwards stored on Second or Third street, then the jury will find for the defendants, and assess the value of the trunks and valises so taken by the officer, and will assess as and for damages the interest at sis per cent, per annum on the value of said trunks and valises, from the date they were taken by the officer to the present time. 2. If the jury believe from the evidence that a part of the trunks and valises taken by the officer from the store on Fifth street were not the trunks and valises delivered to the plaintiff at Murphy & Parker’s store on Second' street, but were manufactured by the defendant Albert Parker at the store on Fifth street, then the jury will find for the defendants as to such trunks and valises, and will assess the value of them at the time of taking by the officer, and will also assess as damages the interest at six per cent, per annum on the value of said trunks and valises, from the time the officer took them to the present time. The defendants also asked the court to give the following instructions, which the court refused; to which refusal of the court to give the same, the defendants then and there excepted: 4. The burden of proof is upon the plaintiff to satisfy you that the trunks and valises taken by the officer from the store on Fifth street, were the same trunks and valises that were delivered to plaintiff at the store of Murphy & Parker; and that the sale of the notes by Jacob Parker to plaintiff, and the sale of trunks and valises by Murphy & Parker to plaintiff, were in good faith and for a valuable consideration. 5. If the jury believe from the evidence that the transfer of the notes of Murphy & Parker, by Jacob Parker to the plaintiff, was without consideration, and so understood to be by the plaintiff and Jacob Parker at the time, and that the delivery of the trunks by Parker (of the firm of Murphy & Parker) was made to the plaintiff for the benefit of Jacob Parker, and so understood by the plaintiff, then the plaintiff had no valid title to said trunks and valises, and cannot recover in this action. 6. If the patent right spoken of by the witness was of no value, and so understood by the plaintiff and Jacob Parker at the time of said alleged sale of the notes to plaintiff; or ■if plaintiff has never made to the defendant any valid title to the same; or if it does not appear from the evidence that some other consideration was given by plaintiff for the notes, then the sale of said notes to plaintiff was without consideration and void, and plaintiff cannot recover. The plaintiff asked the court to give the following instructions, which the court gave ; to the giving of which the defendants excepted: 1. If the jury believe from the evidence that the firm of Murphy & Parker made a sale of the trunks and valises, sued for in this case, to the plaintiff, said sale cannot be impeached by the defendants in this suit on the ground of a want or insufficiency of consideration. 2. The return of the sheriff of his execution of the writ of summons and seizure is binding upon both -parties to the suit, and no evidence coming from either side can be allowed to contradict or impeach its validity. 3. If the jury believe the plaintiff is owner of the goods sued for, and was entitled to the possession thereof at the commencement of this suit, they must find for the plaintiff. 4. If the jury believe from the evidence that the defendant Jacob Parker wilfully took and carried away from the plaintiff any of the goods belonging to plaintiff and sued for in this action, and afterwards mixed the same with goods of his own on Fifth street, or goods which were in his possession as bailee on Fifth street, so that it was impossible to identify and distinguish the goods so taken away from the plaintiff from the goods with which they were so mixed, then the plaintiff is entitled to recover his own goods so mixed, and to such other goods as it was impossible to distinguish from his own at the time of the seizure, provided the whol^ amount does not exceed the amount originally taken and carried away from him by said defendant Parker. I. The possession of the property by the defendants was prima facie evidence of ownership, and the burden of proof was plainly on the plaintiff to make out his title. Defendants not being parties to the sale, and having possession, the law presumes in them an honest title, which cannot be defeated without showing an honest and valid title in the claimant. The first instruction given for the plaintiff goes upon the ground, that a person having the possession of personal property cannot call upon one who claims it to show an honest title to it. A total want of consideration in a sale implies fraud, and vitiates the sale so that it cannot be enforced against one in possession, unless he is the grantor; and then it is doubtful whether a fraudulent sale can be enforced even against 'a grantor in possession, for the law will not aid fraudulent sales by compelling a delivery. II. But the fourth instruction given is still more objectionable. There was clear evidence that a part of the trunks and valises replevied were the property of Albert Parker, and had been manufactured in his store, and there was no evidence that would pretend to implicate him in any mixing of the goods. The doctrine of confusion of goods only applies where the goods claimed are mixed with the goods of the party who wrongfully holds possession of the goods claimed. If I leave goods in the hands of a bailee, who wrongfully mixes them with other goods in his possession, I am not to lose my goods because the bailee wrongfully, but without my fault, mixes them with others so that the owner of the others cannot readily distinguish them from mine. That would be punishing the innocent for ihe wrong of the guilty.