Nance v. Metcalf

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 183
• Parties: JAMES NANCE, Respondent, v. RICHARD METCALF, Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 183

JAMES NANCE, Respondent,

v.RICHARD METCALF, Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 9, 1885.

APPEAL from Barton Circuit Court.--HON. CHARLES G. BURTON, Judge.

Affirmed.

Statement of case by the court.

This action was begun in a justice's court and tried on appeal in the circuit court, where plaintiff again had judgment, from which defendant prosecutes this appeal. The complaint filed with the justice alleged that the defendant was indebted to plaintiff in the sum of twenty-five dollars, on account of a two-year old steer taken and converted to his use by defendant, which steer was the property of plaintiff. At the trial the plaintiff's evidence tended to show about the following state of facts: In 1879 the plaintiff was the owner of the steer in controversy, and sold him to one Rose, who then sold him to defendant; that in the spring of 1880, the defendant turned the steer out on the commons. The following fall, perhaps, the defendant went to plaintiff and stated that the steer could not be found, and as plaintiff had raised it defendant asked him for a description of the steer, which plaintiff gave him. In the following winter or spring, the defendant and plaintiff again met, when, on being informed by defendant that he had not yet found his steer, the plaintiff offered to give him a gun for the steer, and he (plaintiff) to take the chance of finding it. After some parleying the defendant accepted this offer, and plaintiff turned over the gun to him. The gun, as the evidence showed, was not worth more than $1.50. The plaintiff afterwards made search for the steer, but without avail. His evidence further tended to show that the defendant admitted afterwards, that at the time of the sale or shortly afterwards, the steer had come up with another of his cattle, and was kept at his brother's farm with other cattle of defendant's, and was sold by his brother for him, and converted to defendant's use.

The defendant's evidence tended to show that at the time of these negotiations the steer was at his brother's home, and that defendant either was ignorant of this fact, or that he was mistaken as to the identity of the steer, or that he intended merely to practice a joke on the plaintiff, and afterwards offered to give back the gun to him. In fact, it is difficult to determine precisely what the defendant did claim by his defences. They are uncertain, and quite contradictory.

The court, at the instance of the plaintiff, gave the following instruction:

“If the jury shall believe from the evidence that the steer, sold by the defendant's brother to Kepler, was the same steer which defendant traded to the plaintiff for the gun, you will find for the plaintiff, and assess his damages at such sum as you shall find said steer to be worth.”

The court of its own motion gave the following instruction:

“2. Although the defendant may have lost a steer, which he sold to plaintiff for a gun, and although defendant may have taken up a steer which his brother sold to Kepler, still plaintiff cannot recover unless the steer so taken up and sold to Kepler, was the same steer which defendant traded to plaintiff for a gun.”

The court refused the following instructions asked by the defendant:

“6. The court instructs the jury that if from the evidence they believe that at the time of the trade of the gun for the chance of the steer, that the steer was not in possession of either Nance or Metcalf, then no title can pass by such a contract, which will entitle the plaintiff to recover in an action of this kind.”

“7. The court instructs the jury that if they believe from the evidence, that the steer was in fact lost at the time of the alleged trade, then the plaintiff cannot recover in this kind of an action.”

“8. The court instructs the jury that under all the evidence the finding should be for the defendant.”

“9. The court instructs the jury that unless they find from the evidence that at the time plaintiff traded his gun for the steer, the defendant delivered the actual possession of the steer to plaintiff, or at sometime afterward, before the institution of this suit, he delivered actual possession to plaintiff, then the finding must be for the defendant.”

“10. The court instructs the jury that if they believe from the evidence that the plaintiff, James Nance, sold the steer in question to one Rose, and Rose sold the same to Richard Metcalf and delivered possession to Metcalf, and that the steer was not afterward in possession of Nance or Metcalf, then the plaintiff cannot recover in this action and the finding must be for the defendant.”

ROBINSON & HARKLESS, for the appellants.

I. This action, as stated in the complaint, is not sustained by the evidence. There is a complete failure to make out the case stated. The complaint is on the theory that plaintiff is entitled to the value of the steer, to-wit, twenty-five dollars; while the evidence shows a case of deceit, for which the plaintiff might recover the value of the gun, to-wit, one dollar and fifty cents. There is a clear, striking, and material variance, and the evidence did not make out the case brought. Sandeen v. K. C., St. Jo. & C. B. R. R. Co., 79 Mo. 278; Spencer v. Vance, 57 Mo. 427; Carson v. Cummings, 69 Mo. 325.

II. The steer traded for was supposed to be lost, and neither party intended that possession should pass, unless it was found, and it could not be delivered until found. Hence, if defendant afterwards be found in possession of the steer, still plaintiff cannot recover in this kind of action. Wilson v. Wilson, 11 American Reports, 519.

III. Even if the form of action is a proper one, the evidence fails to make out a case. The minds of the parties never met, and there was no contract between them. Again, to constitute a sale there must be either actual or constructive delivery, and in this case there could not be either. Schouler on Pers. Prop. 191, 194.

IV. The court erred in refusing instructions for defendant, and in giving plaintiff's as to measure of damages. Spencer v. Vance, 57 Mo. 427.R. J. TUCKER and E. BULER, for the respondent.

I. The statement was sufficient to apprise defendant of the nature of plaintiff's demand, and was, therefore, good. Barbow v. Occidl. Grove, 3 Mo. App. 429; Iba v. R. R. Co., 45 Mo. 469; Roorbaugh v. Reed, 57 Mo. 202.

II. The evidence tended to make out substantially the cause of action set forth in plaintiff's statement, and there was no material variance. Coughlin v. Lyons, 24 Mo. 534; Hale v. Vandever, 67 Mo. 732; Burt v. Warne, 31 Mo. 296.

III. The theory of defendant is that as there was no delivery, the title to the property did not pass. If the value claimed and proven exceeded thirty dollars, there might be something in it; but it was both alleged and proved to be less than that sum, hence the statute of frauds cannot be invoked.

IV. The evidence showed a proper subject price agreed upon and consent of contracting parties. This was sufficient to constitute a valid sale and vesting the property in plaintiff. Cunningham v. Ashbrook, 20 Mo. 557; Erwin v. Arthur, 61 Mo. 386.

V. The defendant's instructions were based on a theory not sustained by law, as to delivery being essential, and were properly refused. The instruction given for plaintiff as to measure of damages was not strictly correct, but it was harmless error, for the jury found according to the lowest valuation of any witness, and considerably less than the sum sued for.

PHILIPS, P. J.

I. The first contention of appellant is, that the plaintiff sued on one cause of action and recovered on another, or that the proofs do not support the allegations of the complaint. There is certainly no difficulty as to the intendment or construction of the complaint. It contains but two material averments: First, that the plaintiff was the owner of the steer in controversy; and, second, that the defendant converted him to his own use.

The first question then to be determined is, does the proof tend to show that the plaintiff, at the time of the alleged conversion, was the owner of the property? It is admitted that at one time the plaintiff did own the steer, and that he sold it to one Rose, and that defendant bought it from Rose. This, then, clearly put the ownership in the defendant. It cannot matter that the steer afterwards strayed from the defendant. He was no less the property of the defendant. It is not essential to the ownership of personal property, and the consequent right of disposition, that the owner should have at the time of sale the actual, manual possession of the property. Whether in the barn, pasture or lot of the owner, or on the commons, it is his property.

Did the plaintiff, by reason of the transaction between him and defendant, become the owner of the steer? Counsel for appellant argue this question as if it were an indispensable pre-requisite to a valid sale and transfer of...