majority">Napton, Judge,

delivered the opinion of the court.

The case of Mitchell v. Winslow, 2 Story, 639, referred to in the opinion of this court in Page & Bacon v. Gardner, 20 Mo. 511, can not be reconciled, in all respects, with the decisions of this court in Brooks v. Wimer, 20 Mo. 506, and several subsequent cases reiterating the same doctrine. So far as the case goes to sustain the judgment in Page & Bacon v. Gardner, no exception is designed to be taken to it, as the opinion and judgment in that case is not supposed to conflict with the views expressed in Brooks v. Wimer. But an examination of Judge Story’s opinion in Mitchell v. Winslow will show that he entertained views, in relation to assignments, totally adverse to the positions taken by this court in Brooks v. Wimer; and therefore, although the assignment in the case of Mitchell v. Winslow in many respects resem-. bles the present, Judge Story’s opinion upholding it can not be regarded authoritative here. In the case of Moody v. Wright, 13 Metc. 17, the. opinion of the supreme court of Massachusetts, wherein Mitchell v. Winslow is reviewed, seems to conform more nearly to the decisions made here, and in truth exactly accords with the theory upon which the present case was tried in the court of common pleas.

It is not necessary to pass upon the validity of the deed of trust made in 1852 to the trustee1 of Franklin & Thomas, who is the present plaintiff. It was treated as operative in *414the instructions given to the jury so far as the goods in store at its date were concerned. It purported to convey “ all the stock in trade, goods, wares and merchandise of every kind and description in the hardware store, No. 86 north Main street, St. Louis, and then occupied by Perry,” as well as “ all the goods and stock then in the course of transporta-tation belonging to said Perry; as also all the stock in trade of every kind which, during the existence of said trust, should belong to said Perry either in said store or any other store or place; thereby conveying and intending to convey to said trustee all the goods of every kind and stock which then belonged or during the existence of said trust should belong to said Perry,” <fcc. The notes, to secure which this deed was made, were payable in three and four years from date. There can be no doubt that it was the intention of all the parties to this instrument that Perry, the assignor, should remain in possession of his stock of goods thus assigned, and carry on his business as a hardware merchant; and the facts proved upon the trial fully established that this was understood by all parties as the proper construction of the deed. In this view of the case the instruction given by the court in relation to the small package, worth five or ten dollars, which was supposed to be part of the original stock conveyed to plaintiff in 1852, could not have been prejudicial to the plaintiff, and its propriety becomes perfectly immaterial.

But assuming the assignment to Hall as prima facie valid, and adopting the principle upon which the case was tried, that the stock on hand in 1852 passed by the assignment, the sheriff would hardly be authorized to take possession of a stock of goods worth twelve or fifteen thousand dollars, because there happened to be in the stock a single package worth ten dollars which he was justified in seizing ; and the effect of a reversal for a misinstruction on this point, if any such had occurred, would only be to reduce the verdict to the extent of the value of this single package. Such a course would only lead to an unnecessary accumulation of costs.

The court committed no error, in our opinion, in exclud*415ing proof of the defendant’s supposed intentions in relation to the disposition of the property. What an owner intends to do with his property, whether he designs to sell it at auction or privately, or to retain it for his own use, or to give it away, is not a matter which concerns a trespasser. The point of inquiry is its value, and although the owner may design to destroy it or burn it up the next day, that circumstance does not diminish or in any way affect the responsibility of a stranger who illegally and wrongfully takes possession of it. All the testimony offered in this case concerning the value of the goods, either by auction sales or otherwise, was permitted, and the verdict of the jury has fixed the value at a sum exceeding, indeed, what seems to us as a fair valuation, but which we have no power to change, sanctioned as it has been by the court which tried the case.

Judge Scott concurs.

The judgment will be affirmed.

Citation profile

Relationships

How this case has been treated — in progress