Cowan v. Young
| Decision Date | 09 April 1920 |
| Citation | 220 S.W. 869,282 Mo. 36 |
| Parties | HENRY COWAN v. O. G. YOUNG, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. J. Seehorn, Judge.
Affirmed.
Goodwin Creason and B. F. Deatherage for appellant; T. A. Witten of counsel.
(1) Defendant's objection to the introduction of any evidence on the ground that the petition did not state a cause of action, ought to have been sustained. The facts stated in the petition, if true, would constitute a conversion of the property while the prayer is for recovery of the contract price. (2) The court erred in refusing at the close of plaintiff's case to give an instruction asked by the defendant in the nature of a demurrer to plaintiff's evidence, because there was no evidence tending to prove either (a) that defendant bought the cattle in question from plaintiff or at any time agreed, either in person or by agent, expressly or impliedly, to pay plaintiff for said cattle, or (b) tending to prove that defendant had any notice or knowledge that Jersig (if he so did) had represented to plaintiff that he was defendant's agent to purchase said cattle for defendant and to enter into a contract with plaintiff concerning same, before defendant had received and used said cattle, and there was nothing to submit to the jury either upon the theory that the suit was upon a contract or upon the theory that it was an action in tort for a conversion. (3) If the present suit is on an alleged contract, to recover the price of the cattle, then the court erred in refusing to give, at the close of plaintiff's case, an instruction asked by defendant in the nature of a demurrer to the evidence because the evidence of plaintiff disclosed that he had previously elected to claim the cattle and had brought and prosecuted a suit in replevin therefor and is thereby barred from prosecuting this action. Dry Goods Co. v. Warden, 151 Mo. 578; Light & Power Co v. Machine Co., 170 Mo.App. 232; 15 Cyc. 257, 259, 260; Milling Co. v. Burns, 152 Mo. 350; 15 Cyc. 262; McWilliams v. Thomas, 74 S.W. 596; Snyder Co. v Brown, 46 S.W. 108; Parker v. Panhandle Natl. Bank, 34 S.W. 196; Sullivan v. Ross, 113 Mich. 311; MacMurray-Judge Iron Co. v. St. Louis, 138 Mo. 608; Welsh v. Corder, 95 Mo.App. 45; Avery & Son v. Texas Loan Co., 62 S.W. 793; Tamer v. Compton Hill Imp. Co., 192 Mo. 379; Bigelow on Estoppel (5 Ed.), 673. (4) The court erred in submitting to the jury in instruction "B" the theory of a ratification by defendant of acts and representations of Jersig, because there was no evidence in the case to support that theory. Nor was ratification pleaded. Lipscomb v. Talbot, 243 Mo. 28; Wade v. Hardy, 75 Mo. 394; Capital Bank v. Armstrong, 62 Mo. 59; Noble v. Blunt, 77 Mo. 242; Loving Co. v. Cattle Co., 176 Mo. 353; McClanahan v. Payne, 86 Mo.App. 292; Weil v. Posten, 77 Mo. 287; Glass v. Galvin, 80 Mo. 302; Lenox v. Harrison, 88 Mo. 495; Christian v. Ins. Co., 143 Mo. 469.
New, Miller, Camack & Winger and P. E. Reeder for respondent.
(1) Defendant's objection to the introduction of any evidence on the ground that the petition did not state a cause of action was properly overruled by the trial court. Sufficient facts were alleged in the petition to state a cause of action upon a contract by plaintiff with the defendant, acting through his agent Jersig, and even though a cause of action for conversion of the cattle may have also been set forth in the petition, and even though such cause of action for conversion may have been improperly united with one on contract in the petition, such improper joinder was waived by the defendant for his failure to attack the petition before answer, either by demurrer or by motion. Secs. 1800, 1804, R. S. 1909; House v. Lowell, 45 Mo. 381; Stone v. Perkins, 217 Mo. 586; Bailey v. Houston, 58 Mo. 361; Meade v. Brown, 65 Mo. 552; Hendricks v. Calloway, 211 Mo. 536; Koehler v. Rowland, 205 S.W. 221; Finnell v. Met. Ry., 159 Mo.App. 522; City Light Co. v. Machine Co., 170 Mo.App. 231; Connihan v. Thompson, 111 Mass. 272; Stewart v. Hayden, 72 F. 412; Stewart v. Hayden, 169 U.S. 15. (2) The court properly refused defendant's demurrer to the evidence at the close of plaintiff's case because there is ample evidence in the record showing, (a) that Jersig bought the cattle from Cowan for Young as the latter's agent and agreed in behalf of Young to pay for them and that Jersig was the duly authorized agent of Young to make such purchase; and (b) that Young, thereafter fully ratified the acts of Jersig in purchasing the cattle for him and in his behalf, acting as Young's agent. Hilz v. Mo. Pac. Ry. Co., 101 Mo. 36; Riggs v. Railroad, 216 Mo. 310; Jackson v. Stanfield, 23 L. R. A. (Ind.) 598; Ralston v. Kohl, 30 Ohio St. 92; 31 Cyc. 1661; Hackett v. Van Frank, 105 Mo. 399; 31 Cyc. 1275; McLachlin v. Barker, 64 Mo.App. 522; Bowlin v. Creel, 63 Mo.App. 229; Fahy v. Grocery Co., 57 Mo.App. 73; Mayer v. Old, 57 Mo.App. 639; Griswold v. Haas, 177 S.W. 728; Clark v. Clark, 55 Mo.App. 535. (3) The institution of the replevin suit in Oklahoma did not preclude or bar the plaintiff from filing and maintaining the present suit and is no defense in this action. City L. & P. Co. v. Machine Co., 170 Mo.App. 224, 231; Taylor v. Short, 107 Mo. 392; Otto v. Young, 227 Mo. 219; Steinbach v. Murphy, 143 Mo.App. 537, 540; Johnson v. Bank, 198 S.W. 990; Meinershagen v. Taylor, 169 Mo.App. 12; Trust & Savings Bank v. Bloodworth, 174 P. 545.
RAILEY, C. White and Mozley, CC., concur.
This action was commenced in the Circuit Court of Jackson County, Missouri, on April 15, 1915. The petition alleges in substance that, on or about May 31, 1913, defendant made a verbal arrangement with one E. P. Jersig, to purchase for him a large number of cattle at or near the City of Kerrville, Texas, among them being 246 head of three and four-year-old steers, which were to be shipped from Kerrville aforesaid, to defendant, at the City of Schulter, Oklahoma; that defendant, at said time, arranged with and instructed Jersig to pay for said cattle, by drawing upon defendant for the purchase price of same, at the time of loading said steers on board the cars, at Kerrville aforesaid; that the purchase price of said steers was not to exceed $ 40 per head for all three-year-old steers, and not to exceed $ 45 per head for four-year-old steers; that pursuant to said arrangement and instructions, said Jersig purchased from plaintiff for defendant, 246 head of three and four-year-old steers, at the agreed price of $ 9,865; that at the time of said purchase, said steers were reasonably worth said amount; that on or about said date, said steers were delivered by plaintiff, on board the cars at Kerrville aforesaid, billed to defendant, at Schulter, Oklahoma; that at the time of loading said cattle, said Jersig drew on defendant, through the Comfort State Bank, for $ 14,559.55, said amount including the purchase price of said 246 steers, together with the purchase price of other cattle, which were loaded at the same time and place; that at the same time, said Jersig gave plaintiff a check for the sum of $ 9,865, drawn on said Comfort State Bank, being the purchase price of the steers aforesaid; that said check bore the indorsement that the same was not to be paid, until said draft, drawn by said Jersig, on defendant as aforesaid, had been paid by the latter; that at the time of the purchase of said cattle, and the loading of same, at Kerrville aforesaid, it was understood and agreed between said Jersig and plaintiff, that the title to said cattle should remain in plaintiff until said draft, drawn on defendant, as heretofore alleged, had been paid by the latter; that said cattle arrived at the City of Schulter, Oklahoma, on or about the day of May, 1913, and immediately upon their arrival, defendant took and retained possession of same, refused to honor the draft aforesaid, has ever since refused to pay the same, or to pay for said cattle although frequently requested so to do, and has refused to deliver up said cattle to plaintiff; that at the time of the arrival of said cattle at Schulter aforesaid, they were reasonably worth said sum of $ 9,865; that by reason of the foregoing, defendant is now indebted to plaintiff in said sum of $ 9,865, for which amount, with interest thereon at six per cent per annum, from May 12, 1913, and costs of suit, plaintiff prays judgment, etc.
(1) The amended answer contains a general denial
(2) It charges in substance that plaintiff sold the cattle in controversy to E. P. Jersig, and received from him in payment of same, a check on the Comfort State Bank of Kerrville, Texas, payable at a later date; that he delivered said cattle to Jersig in Texas, and thereby waived cash payment for same; and passed the title thereto to said Jersig.
(3) That he (defendant) purchased a certain number of cattle from Jersig, which were delivered to him by the latter, at Schulter, Oklahoma; that upon delivery of same, he paid part of the purchase price thereof; that if Jersig had not paid for said cattle, defendant had no knowledge of that fact, nor whether they were the same cattle Jersig bought from plaintiff, etc.
(4) That about March, 1913, Jersig was indebted to him about $ 20,000, represented by notes, which were secured by chattel mortgage on certain cattle claimed to be owned by Jersig then in Texas; that said notes are past due and remain unpaid; that Jersig represented to defendant that he could gather and deliver to him at Schulter, Oklahoma, about 350 head of cattle so mortgaged by him as security for defendant's indebtedness aforesaid; that he had purchased and then owned about 300 head of other cattle which he desired to sell, being three and...
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