Langsdorf v. Field , 36 Mo. 440 ( 1865 )

Wagner, Judge,

delivered the opinion of the court.

We see no error in the ruling of the court excluding the declaration of Meirand; for aught that appears, he was a competent witness, and if his evidence was desired he should have been called on to testify. There was no evidence offered on behalf of the interpleaders to show a positive sale and delivery of the goods, though there was some evidence from which the jury might have deduced and inferred such sale, &c. The act of the parties in ordering the sheriff to levy on the goods under the judgment they had obtained against the defendant in the attachment, was a circumstance going strongly to show that there was no sale or delivery of the goods. The sale and the levy were two inconsistent acts. For a party to acquire an absolute title to goods by purchase, and the very next day have them levied upon by execution in his favor as the property of his vendor, is an absurdity.

The last instructions offered by appellants, and refused by the court, should have been given.

The judgment is reversed and the cause remanded.

Judge Holmes concurs; Judge Lovelace absent.