This is a replevin suit to recover from defendant the possession of certain goods, in which plaintiff had judgment, from which defendant has appealed, and assigns as the chief ground of error the action of the court in giving, at the close of all the evidence, an instruction to the effect, that, under the evidence, the finding must be for the plaintiff.
The evidence tends to disclose the following state of facts : That plaintiff, who was an auctioneer and commission merchant in the city of St. Louis, on the twelfth day of July, 1883, received into his possession from one Landecker, the lot of mixed clothing, in controversy in *555this suit, and to be sold by him on commission ; that, at the time he received them, Landecker exhibited to-him-an invoice or bill of sale of said goods, which was executed by one Levy, and that plaintiff, after the delivery to him, at his commission house, of one-half of the goods, and while the others were in course of delivery, advanced to said Landecker the sum of twenty-five hundred dollars, in a check drawn on the-Bank of Commerce, and payable to the order of said Landecker, dated on the twelfth, and paid by said bank on the thirteenth, of July, being endorsed in blank by said Landecker. The evidence also tends to show that thereafter, on the twelfth of July, 1883, there came to the hands of defendant, sheriff of the city of St. Louis, three certain writs of attachment sued out by certain creditors of said Levy, and that, about'two o’clock in the-afternoon of said day, he levied said writs on the said stock of clothing in plaintiff’s possession as the property of said Levy, and took the same into possession ; that, thereafter, under an order made in this suit for the-delivery of the goods to plaintiff, he having given bond,, they were returned to plaintiff, and were subsequently sold by him at public auction for the sum of four thousand four hundred dollars.
The evidence further tended to show that the goods sold by Levy to Landecker were, worth about six thousand dollars, and that the consideration expressed in the bill of sale was twenty-five hundred dollars; that Levy at that time was- heavily in debt; that, immediately after the sale, the goods were removed by Landecker to plaintiff’s commission house in teams furnished by plaintiff for that purpose; that, after the goods were delivered to plaintiff, and after he had advanced on the same twenty-five hundred dollars- to» Landecker, plaintiff was notified by an attorney of one of the plaintiffs in the attachment suits, that the-sale'by Levy to Landecker was made in fraud of his creditors. *556The evidence tended further to show that, until more than half the goods had been delivered to plaintiff, and at the time he made the advancement, he did not know where the goods came from.
The undisputed facts in the case show that the •goods in question were consigned and delivered by Landecker to plaintiff as an auctioneer and commission merchant, to be sold by him on commission, and that he advanced the sum of twenty-five hundred dollars on the same without notice or knowledge of the fraud •between Levy and Landecker, if . any such fraud there was. Under .this state of facts, plaintiff had a right to the possession .of the goods as against an attaching creditor; of which possession he could not be deprived either by the consignor or creditor of the consignor, till his advances, commissions, and charges were tendered him, and he was made whole. The principle here stated is supported by the following authorities: Baugh v. Kilpatrick, 54 Pa. St. 84; Monteith v. Printing Co., 16 Mo. App. 450; Drake on Attach., pp. 204-5, sec. 245 ; Jones on Pledges, p. 295, sec. 372, and p. 474, sec. 631; Story on Agency, p. 30, sec. 27.
It appears that plaintiff had in his hands fourteen thousand four hundred dollars, the proceeds of the sale of the goods which, by virtue of an order made in this .suit, had been taken from the possession of defendant. Under the judgment, plaintiff recovered the whole of said amount, and it is insisted that judgment for the surplus remaining in his hands, after deducting from the whole amount of the proceeds of the sale his advancement, commissions, and proper charges, should have been rendered for the defendant, and in support of this view we have been cited to the cases of Dilworih v. McKelvy, 30 Mo. 154; Boutelle v. Warne, 62 Mo. 354, and Dougherty v. Cooper, 77 Mo. 534-6. It is the opinion, of a majority of the court, that the above cases sustain the contention, and that' the point is well taken (to which I do *557not agree) and that the amount of plaintiff’s recovery-should have been measured by the sum total of his advancement, commissions, and charges, and that the surplus remaining over should have been adjudged to the defendant.
Judges Sherwood, Ray, Black, and Brace are of the opinion that because such judgment was not rendered,that reversible error was committed, and it is hereby ordered that the judgment be reversed and cause remanded to be proceeded with in conformity with this opinion.