Kloes v. Wurmser & Louis , 34 Mo. App. 453 ( 1889 )

Gill, J.

I. The principal matter complained of, in the trial before the circuit court, is the admission of the letter of Louis & Co., Omaha, above quoted, and upon which plaintiffs relied as a rescission of the contract of purchase. It is claimed that the letter was not sufficiently identified — that there was no proof of its execution.

It seems that at the trial the letter was read aloud, and in -the presence and hearing of one Jones, who was the book-keeper of Louis & Co., and whose business it was to write letters for the firm, and Jones on the stand, in effect, admitted that he wrote the letter, “if ‘ J ’ is signed to it.” It would seem such evidence was sufficient to identify the letter as “ J ” was signed to it. Anyhow, in . the absence even of the proof of the hand-writing of the letter, it was admissible in evidence as it was shown to have been received, by mail, in reply to the postal card sent by mail to Louis & Co. on September 14, 1886. 1 Greenl. Ev., (14 Ed.) sec. 573a., p. 669.

II. Now it is clear from the evidence that this letter, countermanding the order for the shades, was received by the plaintiffs, and the rescission assented to by them, while the goods were in transit, and before their arrival at Omaha.

The insolvency too of Louis & Co. at that time is clearly established. It follows, then, that by this rescission, the title to the shades reinvested in the plaintiffs, and they had the right to reclaim them, even as against one occupying the station of a purchaser ignorant of the facts. Benj. on Sales, secs. 858, 498, etc.; Spring v. Coffin, 10 Mass. 31; Wilson v. Crockett, 43 Mo. 216.

III. Further objection is made by appellants’ counsel to the court’s “ declaration of law ” or “finding of facts.”

It appears in the record as follows :

“The court, sitting as a jury, finds from the evidence in this case that the goods in controversy were the property of plaintiffs at the time the defendants bought the same at Omaha, and that at the time of such purchase from Louis & Co., said Louis & Co. were in failing circumstances, and sold their said stock of goods at Omaha for the purpose of cheating, hindering and delaying their creditors, and that at the time defendants bought said goods they had notice of such intention and purpose on the part of said Louis & Co., and are not innocent purchasers of the goods in controversy, and on these facts the court declares the law to be that plaintiffs ought to recover the possession of the goods in controversy, and one cent damage.” It is true that the court, in the body of this declaration, or finding, has asserted a mere legal conclusion, when it is found “that the goods in controversy were the property of plaintiffs at the time the defendants bought the same at Omaha,” and, as we conceive it, the court made unnecessarily a finding as to the go od or bad faith of defendants in the purchase; for, as t he court evidently found a rescission and consequent investment of title' in plaintiffs, the good or bad faith of defendants in their purchase from Louis & Co. was immaterial. However since defendants invited the action, by declaring good faith in the answer, and much evidence on this issue was adduced at the trial, no serious fault can be charged to the court for deciding such issue of defendants’ good or bad faith.

We have examined the entire record, and have read all the evidence introduced, and gather therefrom that the case was fairly tried and judgment had for the right party.

Judgment affirmed.

The other judges concur.