Anchor Milling Co. v. Walsh

• Citation: 24 Mo.App. 97
• Parties: ANCHOR MILLING COMPANY, Appellant, v. MICHAEI WALSH, Respondent.
• Decision Date: 04 January 1887
• Court: Court of Appeal of Missouri (US)

24 Mo.App. 97

ANCHOR MILLING COMPANY, Appellant,

v.MICHAEI WALSH, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed nisi.

G. M. STEWART, for the appellant.

A. R. TAYLOR and A. A. PAXSON, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This case was before us on a former appeal and is reported in 20 Mo. App. 107. After being remanded by this court, the case was again tried in the circuit court before a jury, and the result was that the plaintiff had a verdict and judgment for all the property in controversy, except two stake wagons and five sets of harness, as to which the jury found in favor of the defendant, that he was entitled to possession, and assessed the value of such property at two hundred dollars, and the damages for the taking and detention of the same at one thousand dollars. The plaintiff moved for a new trial on the ground (among others) of excessive damages; and the court, as the condition for overruling the motion for new trial, required the defendant to remit five hundred dollars of the damages, which was done. The court thereupon overruled the motion for new trial and rendered judgment in accordance with the verdict and the remittitur, and from this judgment the appellant prosecutes the present appeal.

Two points are urged in this court by the appellant.

I. The first is that the court erred in giving the first instruction requested by the defendant, because there was no evidence in the case to which it was applicable. This point is clearly not well taken. The instruction was as follows:

“The court instructs the jury that if they find, from the evidence in this case, that after November 25, 1881, the defendant did hauling for the plaintiff, and that by arrangement between the plaintiff and the defendant, the plaintiff, from time to time, was to deduct a portion of the defendant's earnings and apply the same on account of the money due by the defendant to the plaintiff, as evidenced by the bill of sale read in evidence; and if the jury believe from the evidence that the plaintiff by its proper officer, did, in pursuance of said arrangement, deduct from the earnings of the defendant as much, or more than was due under said bill of sale, and apply same upon the indebtedness evidenced by said bill of sale before this suit was brought, then said bill of sale was paid, and the plaintiff can not in this action recover the two wagons and five sets of harness, and as to said property, the verdict must be for the defendant.”

The evidence of the defendant was positive to the effect that the two stake wagons and five sets of harness, as to which the jury found in his favor, were not included at all in the bill of sale mentioned in this instruction, and, although there was some testimony to the contrary, there was no attempt directly to rebut this statement. Without stating the evidence in detail, it will be sufficient further to say that there was also evidence in the record tending to show that the defendant had earned in hauling for the plaintiff, under the arrangement mentioned in the instruction, more than enough to discharge the indebtedness which the bill of sale was intended to secure. If, as the plaintiff's counsel now argues, there was no evidence also tending to show that the plaintiff had deducted from the defendant's earnings an amount sufficient to pay this debt, and applied them to its payment before this action was brought, it may be answered that this is immaterial; since the law itself would make the application for the purpose of saving a forfeiture. And, hence, in so far as the instruction required an application, by the union of the minds of the parties, of any balance due from the plaintiff to the defendant upon the debt secured by the bill of sale, although the instruction was erroneously drawn, the error was in favor of the plaintiff. In either point of view, then, it can not be held that the court erred in giving the instruction.

II. The second point is that the damages are excessive; and we again meet with the proposition, seriously argued, that the measure of damages is interest on the value of the property from the time of the seizure under the writ to the date of the trial. We decided in this case on the former appeal that the measure of damages is the value of the goods at the time of the assessment of the damages, together with such damages as the defendant may have sustained by reason of the caption and detention; and the court correctly admitted evidence to show the reasonable value of the use of the...