22 Mo.App. 122 (Mo.App. 1886), Speak v. Ely & Walker Dry Goods Co.

Citation:22 Mo.App. 122
Opinion Judge:THOMPSON, J.
Party Name:B. F. SPEAK, Respondent, v. ELY & WALKER DRY GOODS COMPANY, Appellant.
Attorney:WILLIAM B. THOMPSON, for the appellant.
Case Date:May 04, 1886
Court:Court of Appeals of Missouri
 
FREE EXCERPT

Page 122

22 Mo.App. 122 (Mo.App. 1886)

B. F. SPEAK, Respondent,

v.

ELY & WALKER DRY GOODS COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 4, 1886

APPEAL from the Cape Girardeau Court of Common Pleas, ROBERT L. WILSON, Judge.

Reversed.

WILLIAM B. THOMPSON, for the appellant.

OPINION

THOMPSON, J.

The theory on which this case was tried will appear by the two instructions on which the court put it to the jury. The first was requested by the plaintiff, and was as follows: " The court instructs you that if you believe from the evidence that the defendant unlawfully took and converted to its own use the property of plaintiff described in the petition, you should find for the plaintiff and assess his damages at the reasonable market value of such goods at the place and time the conversion took place, with six per cent. interest from the date of conversion." The second was given at the request of the defendant, and was as follows: " The court instructs the jury that if they believe from the evidence that the plaintiff and defendant, through one of its members, did, in the month of April, 1884, make an agreement, whereby plaintiff was to deliver to defendant the goods in controversy, and that plaintiff agreed to take therefore the sum of eight hundred and forty-one dollars, to be entered as a credit on three notes held by defendant against plaintiff, and if they further believe that said goods were delivered by plaintiff and received by defendant, according to said agreement, and that the said sum of eight hundred and forty-one dollars was credited by defendant upon said notes, then the jury will find for the defendant." As the jury found for the plaintiff in the sum of five hundred dollars, they must have found the existence of the state of facts on which the former of the above instructions was predicated.

What is an unlawful conversion is a question of law where the facts are found or conceded. In instructing a jury it is error for the court to submit questions of law to them for their determination. Fugate v. Carter, 6 Mo. 267, 273; Hickey v. Ryan, 15 Mo. 63, 67. The only case in which such an error will not work a reversal of the judgment is where the question of law is what is called an abstract proposition not relevant to any evidence in the case, and, therefore, immaterial and harmless, or where the jury have manifestly decided the...

To continue reading

FREE SIGN UP