Smith v. Chas. Southern

Decision Date14 January 1922
Citation236 S.W. 413,210 Mo.App. 288
PartiesW. S. SMITH, Respondent, v. CHAS. SOUTHERN, Appellant
CourtMissouri Court of Appeals

Appeal from the Pemiscot County Circuit Court.--Hon. Sterling H McCarty, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

McKay & Medling for appellant.

(1) Under the facts as disclosed by the testimony in this case respondent and appellant were the joint owners of the property sued for and a joint owner of personal property has no right to sue severally for its conversion, and this rule applies to an action against his co-owner. Johnson v Stock Yards Bank, 102 Mo. 395. (2) Instructions which ignore or exclude issues, theories or defenses from the consideration of the jury are erroneous. Tinkle v. St Louis, etc. R. Co., 212 Mo. 445; Austin v. St. Louis Transit Co., 115 Mo.App. 146; Bagley v. Harmon, 91 Mo.App. 22; Ern v. Rubenstein, 72 Mo.App. 337. (3) It is the duty of the court to submit to the jury, and give instructions thereon any issue, theory or defense which the evidence tends to support. Kirchner v. Collins, 152 Mo. 394; Coleman v. Roberts, 1 Mo. 97; Clapper v. Mendell, 96 Mo.App. 40; Kraft v. McCord 32 Mo.App. 399.

No brief filed by respondent.

BRADLEY, J. Cox, P. J., and Farington, J., concur.

OPINION

BRADLEY, J.

--This cause originated in a justice of the peace court to recover $ 240 for the alleged conversion of some cotton. Plaintiff was successful in the justice court and defendant appealed to the circuit court. There on trial before the court and a jury plaintiff obtained a judgment for $ 100, and defendant appealed.

Plaintiff in 1919 rented fifteen acres of land from defendant and as rental was to give one-fourth of the cotton and one-third of the corn. The whole fifteen acres, however, were cultivated in cotton. On July 31, 1919, plaintiff gave his note for $ 156 due in three months with one Wells as surety, to the Cotton Exchange Bank of Steele, Mo. Plaintiff gave Wells a mortgage on his three-fourths interest in the cotton to secure Wells for going his surety. October 16th thereafter plaintiff and defendant made a deal whereby defendant took up the $ 156 note at the bank, and plaintiff turned over to defendant the remainder of plaintiff's three-fourths interest in the cotton not then disposed of. Plaintiff says that defendant was to take possession of the cotton, gather and market it until defendant was reimbursed for taking up the $ 156 note, and if there was any cotton left after being so reimbursed, the cotton was to be turned back to plaintiff. Defendant says that he was to take the cotton, all of it, gather and market it, and if there was any money left over after he was reimbursed, that, whatever amount it was, it was to be turned over to plaintiff. Plaintiff says that notwithstanding the agreement, defendant did not take the immediate possession of the cotton, but that he, plaintiff, continued to gather it and market it as he had been doing prior to the deal of October 19th, and that he paid to defendant the $ 156 to reimburse him for taking up the note at the bank, and that after plaintiff had so paid defendant, that defendant took charge of the cotton, and converted it to his own use. Defendant denies that plaintiff had paid him, and says that he gathered and sold the cotton, but lacked $ 1.90 getting enough out of it to pay the expenses and the $ 156 note.

Defendant makes several assignments but for the purposes of this opinion these may be stated thus: (1) There is no evidence to support the verdict; (2) that error was committed in the giving and refusing of instructions; (3) that error was committed in the admission and the exclusion of evidence.

Defendant requested a peremptory instruction at the close of the whole case which was refused. Defendant contents that the evidence conclusively established that plaintiff and defendant were joint owners of the cotton, and that one joint owner cannot as a general rule maintain conversion against his co-owner. Defendant is correct in his statement of the general rule. [Johnson v. Stock Yard Bank, 102 Mo.App. 395, 76 S.W. 699; Sheffler v. Mudd, 71 Mo.App. 78; Merrill v. Mason, 159 Mo.App. 605, 141 S.W. 454.] These cases and others recognize an exception to this general rule to this effect: Where two persons have a joint interest in the whole of an article of personal property and not a separate interest in any particular part thereof, the one out of possession cannot maintain conversion against his co-owner unless the co-owner so appropriates the common property as to render its future use to his co-owner impossible. Also in a number of cases the courts have made an exception to the general rule, and have held that where a chattel owned in common is...

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1 cases
  • Biedermann v. Mermod, Jaccard & King Jewelry Co.
    • United States
    • Missouri Court of Appeals
    • May 2, 1922
    ... ... the assignment of errors or in the brief proper. Smith v ... Southern, 236 S.W. 413; Stuart v. Dickinson, ... 235 S.W. 446; Nations v. Spence, 235 S.W ... ...

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