Ferd Heim Brewing Co. v. Linck , 1892 Mo. App. LEXIS 464 ( 1892 )

Smith, P. J.

As near as we can tell from the imperfect abstract before us this was an action of attachment brought by the plaintiff against the defendant Linek, in which Metta &Kenna were interpleaders. There was a trial on the interplea which resulted in a judgment for the interpleaders, from which plaintiff has appealed. The plaintiff contends that the written contract between the interpleaders and the defendant is void as to creditors. As this contract was admitted in evidence without objection, no question as to its validity arises unless presented by the instructions. The fifth instruction asked by the plaintiff and refused by the court, which told the jury that, if the sale of the goods in controversy or any part thereof was made by interpleaders to defendant under the written contract, were to remain the property of interpleaders until paid for by defendant, and said contract was not acknowledged and recorded as required by the statute, then said contract was in fraud of the rights of creditors, etc., does not present the question suggested by plaintiff. It is true the contract referred to was neither acknowledged nor recorded, but we do not think that it is within the provisions of section 5180, Revised Statutes, and so its validity is not affected by that statute. It provides for no sale of personal property to defendant on condition, or at all. It simply provides that the interpleaders were to furnish the defendant, as their agent, wines and liquors of various kinds, which the latter was to sell at wholesale for cash, and account for the proceeds of the same to the former, retaining as his compensation for his services the amount received for the wiñes and liquors sold in excess of the prices fixed upon each consignment, etc. There was neither sale nor delivery of personal property to the defendant on any condition named in the statute evidenced by the contract, so that the assumption of that fact by the instruction was improper for that reason, if it otherwise had been proper. In Eidson v. Hedger, 38 Mo. App. 52, relied upon by plaintiff, there was a conditional sale and, hence, what is there said is inapplicable to this case. It follows that the court did not err in advising the jury by an instruction that the contract established between interpleaders and defendant the relation of principal and agent in respect to the sale of wines and liquors as therein provided.

This contract is not one whose meaning and effect is dependent on collateral fact$ in pais, or extrinsic circumstances, and, hence, there were no inferences of fact to be left to the jury to draw. It was clear and unambiguous in its language, and it was entirely for the court to determine, as it did, what was its effect.

The objection that the seventh instruction given by the court upon its own motion, which told the jury that if the said contract was not entered into in good faith, and the goods were not furnished to and held by defendant as agent of interpleaders, but that defendant in fact bought the goods of interpleaders, and was in fact the owner of them when levied upon, the jury ought to find for plaintiff, was improper, because the term “good faith” was employed therein, cannot be sustained. The instruction not only declared a correct rule of law, but was exceedingly favorable to the plaintiff. There is nothing in the cases to which plaintiff refers which condemns the use of the objectionable words in an instruction in a case like this.

No error being perceived in the record, the judgment must be affirmed.

All concur.