Welker v. Wolverkuehler

49 Mo. 35

Opinion

Currier, Judge,

delivered the opinion of the court.

This is a replevin suit brought to recover possession of a horse claimed to be the property of the plaintiff.’ It was in evidence that the horse was taken from the plaintiff in 1863 by one Rogers ; and there was evidence tending to show that the taking was a mere act of robbery under the guise of a pretended purchase. It is not sought to defend the acts of Rogers, but it is insisted that the plaintiff has lost his remedy as against the present defendant through his own negligence. It was in evidence that the plaintiff and Rogers resided in the same county from 1866 to 1870, and that the plaintiff made no effort to hold Rogers to accountability. Instructions were asked on behalf of the defendant to the effect that if Rogers was pecuniarily responsible, and resided in the same county with the plaintiff, and the plaintiff neglected for “ several years ” after the horse was taken to proceed against Rogers, then the plaintiff could not recover against a party not knowing of the original wrongful taking. We see no error in the refusal of these instructions. Had it been put to the jury to find whether the defendant in fact purchased without knowledge of the wrongful acts complained of, or whether the defendant was in fact misled by the acts or omissions of the plaintiff, the instructions might have merited a different consideration. As they stand, the want of knowledge on the part'-of the defendant is assumed, and the case is made to turn upon the supposed neglect of the plaintiff, although the supposed negligence may have had no influence whatever upon the conduct of the defendant. At the request of the defendant the court instructed the jury that the defendant was not liable for damages growing out of Rogers’ wrongful acts, unless the defendant participated in them.

Judgment affirmed.

The other judges concur.