Martin v. Withington, 4 Mo. 518

Statement of the case made, and opinion delivered by Tompkins, Judge. Martin brought his action of detinue against Withing-ton, and judgment being given against him in the circuit court, he applied fora new trial. This being refused, he brings the cause into this court by writ of error. ■From the evidence preserved in the bill of exceptions, it appears that Withington, the defendant in the action, kept a ware-house on the bank of the Mississippi, that among several other articles, a bag of coffee had been deposited with him by Martin, the plaintiff in the action.

Martin sent a wagon for his goods, and the defendant not being at home, they were delivered to the driver of the wagon by the son of Withington, a youth “about grown.” Before the wagon departed the defendant came home, and observed, that had he been there the plaintiff should not have had the sack of coffee; that the plaintiff had bought the coffee with his own money in St. Louis, and had agreed to let him, the defendant, have sixty pounds of it, for B. W. Hammack; and if he let the coffee go, Hammack would not get his coffee — and that the plaintiff owed him three or four dollars for boarding and for storage.

The defendant then took the sack of coffee-out of the wagon.

The wagoner told the defendant, he would pay whatever was due on the coffee; the defendant said nothing was due on the coffee; the wagoner then offered to pay what the plaintiff owed the defendant, if defendant would give him an order on plaintiff; the defendant declined doing this, saying the plaintiff would never pay him (the wagoner.) It was also \it evidence, that the youth who delivered the coffee wa$ frequently employed about the ware-house, delivering and receiving goods there; that the plaintiff’s goods had been left in the yard, and were not intended to be stored, but that they were put under shelter from a lain that fell about that time; and that the defendant requested one of his neighbors to inform the plaintiff that he might send and get his bag of coffee.

The authority of the wagoner to receive the coffee is not disputed. court in reviewing the judgment of a Sade on afinding of facts by the court without the no^ dfsturbYhat verdict, unless it be clearly against idence!ght Tha supreme It seems to us that the defendant by his conduct, plainly admitted the authority of his son to'deliver the goods to the plaintiff’s agent; they were accordingly delivered. We may say to the plaintiff himself for the delivery to his agent is a delivery in law to himself.- The coffee being then delivered, he had no right to go into the wagon to take it out.

The witnesses proved that the coffee had not been stored, but was only left in the defendant’s yard by his permission; and the defendant himself admitted that there was nothing due him on the coffee. Supposing he had proved that to be true which he had asserted, that a balance was due him for storage, still he could not retain this coffee, which had not been stored, on account of that balance. There remains then no claim for the defendant to assert to retain the bag of coffee, but that founded on the promise of plaintiff, to let him have sixty pounds of it for B. W. Hammack.

It is the opinion of this court that the circuit court, sitting m this case as a jury, ought, on this state of facts to have found a verdict for the plaintiff, and to have given judgment accordingly; and although in some cases we are not disposed to disturb the judgments of the circuit courtSj entered upon verdicts found on testimony that seemed to us insufficient; yet in this case, the' testimony in favor of the plaintiff is so strong, that we have no hes-Nation in saying, that we believe the circuit court com-error in refusing him a new trial. Its judgment is therefore reversed and the cause remanded.