NORTONI, J.
(after stating the facts). — Appellant contends that the court erred in permitting counsel for the respondent to cross-examine appellant’s agent, who claimed to have made the purchase from the Dimension Company for Sondheimer Company, as to. the price paid to the Dimension Lumber Company for the lumber and as to what such lumber was actually worth at the time. There is no force in this contention. Appellant bottomed its case upon the alleged purchase from the Dimension Company. Respondent in his ansAver denied that the Sondheimer Company owned the lumber, thus putting in issue the purchase and every feature of it. The agent at the appellant’s instance had given testimony that he made the purchase and that his company owned the lumber. Respondent certainly had the right to examine and inquire what price was paid, and when and where and how paid, or whether ther,e was anything at all paid, in' order to ascertain whether there had been a valid transaction. It might be made to ap-' pear by such inquiries that there was no valid purchase of the lumber.
[369] Tbe suit is against the sheriff for the'value of the lumber at the time of the levy, which was the true measure of damages. State to use v. Bacon, 24 Mo. App. 403; State to use v. Allen, 12 Mo. App. 566. It was competent to show what was the market valne of this and other lumber of like kind at the time and place in order to ascertain the extent of respondent’s liability. The court committed no error on this score.
So much of section 3410, of the Revised Statutes of 1899, as is pertinent here, provides: “Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property and be followed by an actual and continuous change of possession of the thing sold, shall' be held to be fraudulent and void as against the creditors of the vendor.” The alleged purchase of the lumber was laid on August sixteenth; but not a word in the record indicates the exact date the levy was made thereon except the general trend of the evidence, which treats the two occasions ás having been some time apart. Our Supreme Court in construing this statute has said “The vendee must take actual possession and the possession must be open, notorious and unequivocal, such as to apprise the community or those who are accustomed to deal with the party, that the goods have changed hands and that the title has passed out of the seller and into the purchaser. This must be determined by the vendee’s using the usual mark and indicia of ownership and occupying that relation to the thing sold which owners of property generally sustain to their own property.” Claflin v. Rosenberg, 42 Mo. 439; Lesem v. Herriford, 44 Mo. 323; Burgert v. Brochert, 59 Mo. 80; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; Mills v. Thompson, 72 Mo. 367; Stewart v. Bergstrom, 79 Mo. 524; State ex rel. v. Goetz, 131 Mo. 675, 33 S. W. 161; Steppacher, etc., Co. v. Saunders, 74 Mo. App. 570; [370] Harmon v. Morris, 28 Mo. App. 326; Farrar v. Stationery Co., 33 Mo. App. 246; Hawkins v. Pressed Brick Co., 63 Mo. App. 64. The evidence shows that appellant did nothing toward taking possession of the property other than measuring it. Its agents then went away, leaving it unstacked and unbranded, laying around on the mill yard of the defendant in the attachment writ, who had sawed and formerly owned the lumber. There was no one left in charge for the appellant other than the men who had manufactured the lumber at their mill. The vendee had not taken actual, open, notorious unequivocal possession of the lumber as required, so that it was discernible to the community or the sheriff that the lumber had changed hands; it was allowed to remain on the ground as before the purchase. Appellant wholly failed to affix the usual marks and indicia of ownership, and the fact that some other piles of lumber on the mill-yard were branded with appellant’s brand would tend to show that it owned such stacks of lumber to the exclusion of that scattered about the yard unbranded and unmarked.
Upon this state of facts the court should have taken the case from the jury. It appearing that some days had elapsed after the alleged purchase prior to the levy, the change of possession not having been such as the statute requires, as appears from the undisputed facts, the sale should have been declared to be fraudulent as a matter of law. State ex. rel. v. Goetz, 131 Mo. 675, 33 S. W. 161; Wright v. McCormick, 67 Mo. 426; Stewart v. Bergstrom, 79 Mo. 524; State to use v. Hellman, 20 Mo. App. 304; Reynolds v. Beck, 83 S. W. 292; Knoop ex rel. v. Distilling Co., 26 Mo. App. 303; State v. Durant, 69 Mo. App. 390; Claflin v. Rosenberg, 42 Mo. 439.
Stewart v. Bergstrom, 79 Mo. 524, is a case where Bergstrom had purchased. a lot of railroad ties and placed a red dot on each but left the ties in the possession of the parties from whom he purchased and they were levied upon as the property of the vendor. Our Su[371] preme Court held, as a matter of law, there was no delivery.
In the present case the court did not take the case from the jury, nor did respondent request the court to do so. The issues were submitted to the jury, both sides joining therein!
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NORTONI, J.
(after stating the facts). — Appellant contends that the court erred in permitting counsel for the respondent to cross-examine appellant’s agent, who claimed to have made the purchase from the Dimension Company for Sondheimer Company, as to. the price paid to the Dimension Lumber Company for the lumber and as to what such lumber was actually worth at the time. There is no force in this contention. Appellant bottomed its case upon the alleged purchase from the Dimension Company. Respondent in his ansAver denied that the Sondheimer Company owned the lumber, thus putting in issue the purchase and every feature of it. The agent at the appellant’s instance had given testimony that he made the purchase and that his company owned the lumber. Respondent certainly had the right to examine and inquire what price was paid, and when and where and how paid, or whether ther,e was anything at all paid, in' order to ascertain whether there had been a valid transaction. It might be made to ap-' pear by such inquiries that there was no valid purchase of the lumber.
[369] Tbe suit is against the sheriff for the'value of the lumber at the time of the levy, which was the true measure of damages. State to use v. Bacon, 24 Mo. App. 403; State to use v. Allen, 12 Mo. App. 566. It was competent to show what was the market valne of this and other lumber of like kind at the time and place in order to ascertain the extent of respondent’s liability. The court committed no error on this score.
So much of section 3410, of the Revised Statutes of 1899, as is pertinent here, provides: “Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property and be followed by an actual and continuous change of possession of the thing sold, shall' be held to be fraudulent and void as against the creditors of the vendor.” The alleged purchase of the lumber was laid on August sixteenth; but not a word in the record indicates the exact date the levy was made thereon except the general trend of the evidence, which treats the two occasions ás having been some time apart. Our Supreme Court in construing this statute has said “The vendee must take actual possession and the possession must be open, notorious and unequivocal, such as to apprise the community or those who are accustomed to deal with the party, that the goods have changed hands and that the title has passed out of the seller and into the purchaser. This must be determined by the vendee’s using the usual mark and indicia of ownership and occupying that relation to the thing sold which owners of property generally sustain to their own property.” Claflin v. Rosenberg, 42 Mo. 439; Lesem v. Herriford, 44 Mo. 323; Burgert v. Brochert, 59 Mo. 80; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; Mills v. Thompson, 72 Mo. 367; Stewart v. Bergstrom, 79 Mo. 524; State ex rel. v. Goetz, 131 Mo. 675, 33 S. W. 161; Steppacher, etc., Co. v. Saunders, 74 Mo. App. 570; [370] Harmon v. Morris, 28 Mo. App. 326; Farrar v. Stationery Co., 33 Mo. App. 246; Hawkins v. Pressed Brick Co., 63 Mo. App. 64. The evidence shows that appellant did nothing toward taking possession of the property other than measuring it. Its agents then went away, leaving it unstacked and unbranded, laying around on the mill yard of the defendant in the attachment writ, who had sawed and formerly owned the lumber. There was no one left in charge for the appellant other than the men who had manufactured the lumber at their mill. The vendee had not taken actual, open, notorious unequivocal possession of the lumber as required, so that it was discernible to the community or the sheriff that the lumber had changed hands; it was allowed to remain on the ground as before the purchase. Appellant wholly failed to affix the usual marks and indicia of ownership, and the fact that some other piles of lumber on the mill-yard were branded with appellant’s brand would tend to show that it owned such stacks of lumber to the exclusion of that scattered about the yard unbranded and unmarked.
Upon this state of facts the court should have taken the case from the jury. It appearing that some days had elapsed after the alleged purchase prior to the levy, the change of possession not having been such as the statute requires, as appears from the undisputed facts, the sale should have been declared to be fraudulent as a matter of law. State ex. rel. v. Goetz, 131 Mo. 675, 33 S. W. 161; Wright v. McCormick, 67 Mo. 426; Stewart v. Bergstrom, 79 Mo. 524; State to use v. Hellman, 20 Mo. App. 304; Reynolds v. Beck, 83 S. W. 292; Knoop ex rel. v. Distilling Co., 26 Mo. App. 303; State v. Durant, 69 Mo. App. 390; Claflin v. Rosenberg, 42 Mo. 439.
Stewart v. Bergstrom, 79 Mo. 524, is a case where Bergstrom had purchased. a lot of railroad ties and placed a red dot on each but left the ties in the possession of the parties from whom he purchased and they were levied upon as the property of the vendor. Our Su[371] preme Court held, as a matter of law, there was no delivery.
In the present case the court did not take the case from the jury, nor did respondent request the court to do so. The issues were submitted to the jury, both sides joining therein!
The instruction given on the part of the appellant predicated appellant’s right to recover on the alleged purchase of the lumber, wholly ignoring that element of the case arising by virtue of the statute above quoted, whether or not the sale was accompanied by delivery in a reasonable time, regard being had to the situation of the property and whether the change of ownership was accompained by an actual, open, notorious and unequivocal change of possession in a reasonable time as required by the statute. The instructions on the part of appellant were more favorable than the case merited. The instruction given on behalf of the respondent, of which appellant complains, was, in our opinion, more favorable to the appellant than the law warranted and he cannot complain thereof. It told the jury that the mere measuring of lumber does not constitute possession, unless accompanied by other acts sufficient to constitute possession, due regard being had, etc. The court might also have added that the law required the taking of actual, open, notoi'ious and unequivocal possession of the lumber within a reasonable time by placing the usual marks andwcMcmof owership upon the lumber, if the situation of the property was such that it would not be removed from the millyard, or other manual possession taken thereof in a reasonable time. This would not havé aided appellant, however, as all of the testimony showed that no marks or brands were placed on the lumber and that nothing had been done indicating a change of ownership. The instruction given was faulty, in that it failed to tell the jury that it was appellants duty to take actual, open and notorious possession of the property within a [372] reasonable time, due regard being had to its situation, etc. As given, it would ordinarily be bad for the reason it was a comment on the evidence. Had it contained more of the law than it did, it would have been that much harder for the appellant to overcome and he cannot be heard to complain of it here. A party cannot complain of an erroneous instruction if the error be favorable to him. State v. Stewart, 90 Mo. 507, 2 S. W. 790; Mangold v. Railroad, 24 Mo. App. 52; Ball v. City of Independence, 41 Mo. App. 462. When an erroneous instruction is given and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial. Barkley v. Cemetery, Assn., 153 Mo. 300, 54 S. W. 482; State v. Taylor, 118 Mo. 153, 54 S. W. 449; Marton v. Heidorn, 135 Mo. 608, 37 S. W. 504. But when the verdict reached in the case is manifestly for the right party and a different result could not have been reached by the jury under the law, the verdict ought not to be disturbed because of such erroneous instruction, Barkley v. Cemetery Assn., 153 Mo. 300, 54 S. W. 482; Baustian v. Young, 152 Mo. 317, 53 S. W. 921; Noble v. Blount, 77 Mo. 235; Fox v. Windes, 127 Mo. 502, 30 S. W. 323; Macfarland v. Heim, 127 Mo, 327, 29 S. W. 1030; Sherwood v. Railroad, 132 Mo. 339, 33 S. W. 774; R. S. 1899, secs. 865, 659. The instruction was not reversible error in this case.
The judgment is affirmed.
All concur.