Ridgeway v. Kennedy

52 Mo. 24

Opinion

Ewing, Judge,

delivered the opinion of the court.

This was a suit by attachment before a justice of the peaeeThe writ was levied. on certain goods as the property of Kennedy, which were claimed by Eobinson and Tannihill, and on a trial before the justice judgment was rendered for the interpleaders. Plaintiff appealed to the Circuit Court, where the cause was tried by a jury, and a verdict and judgment again rendered for the interpleaders.

On the trial the interpleaders read in evidence a paper signed by defendant Kennedy, showing a conditional sale and delivery of the property to him by Eobinson and Tannihill.

The evidence also tended to prove that after the expiration of the time when Kennedy was to pay for the property the interpleaders demanded possession, but at his request they permitted him to retain it a short time gratuitously for the use of the family, and while in possession of Kennedy under these circumstances, it was levied on. It also appeared in evidence that Kennedy, when possession was claimed by the interpleaders, made no claim to the property but acknowledged that it belonged to them. The instructions given on behalf of the interpleaders were correct. A sale and delivery of goods on condition that the property is not to vest until the purchase money is paid or secured, does not pass the title to the vendee until the condition is performed; and the vendor, in case the condition is not fulfilled, has a right to re-possess himself of the goods, both against the vendee and his creditors ; and if guilty of no neglect may recover the goods so sold even from an innocent purchaser. (Sto. on Sales, § 313, n. 2; Id., p. 364, n. 1; Parmlee vs. Catherwood, 36 Mo., 479; Little vs. Page, 44 Mo., 412.)

The instructions asked by the plaintiff were framed irpon the theory that the instrument read in evidence created merely a lien in favor of the interpleaders, and were therefore properly refused.

There is obviously no merit in the point made as to the admission of evidence.

The statement of Eobinson testified to by the constable, was only what was said by him in asserting his claim to the property which was about being levied on. So, the declaration of Mrs. Kennedy, as testified to by the same witness, to the effect that the property belonged to the interpleaders, though not strictly admissible, was confirmed by all the testimony in the case, and could not have prejudiced the plaintiff; and its exclusion could have had no tendency to produce a different result.

The judgment is for the right party and will be affirmed.

The other judges concur.