Ascher v. Schaeper

• Decision Date: 23 February 1887
• Parties: LENA ASCHER, Respondent, v. HERMANN SCHAEPER, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 1

LENA ASCHER, Respondent, v. HERMANN SCHAEPER, Appellant.

Court of Appeals of Missouri, St. Louis.

February 23, 1887

APPEAL from the St. Louis County Circuit Court, W. W. EDWARDS Judge.

Reversed and remanded.

A MCILHINNEY, for the appellant: There was no evidence of the value of the property in controversy. Pope v. Jenkins, 30 Mo 528; Chapman v. Kerr, 80 Mo. 158; Mix v. Kepner, 81 Mo. 93.

JOHN R. WARFIELD, for the appellant.

R. H. STEVENS, for the respondent.

OPINION

ROMBAUER J.

This is an action of replevin. The plaintiff, who is a married woman, sued for the recovery of two horses, and damages for their detention. The action was brought under the provisions of the act of 1883 (Laws 1883, p. 113), and the plaintiff recovered judgment for the property, or its value, assessed at four hundred dollars, and also for one hundred and seventy-five dollars, her damages for its detention.

The defendant appealing complains that there was no substantial evidence to warrant any recovery, that the court misdirected the jury, and that the finding of the jury on the question of value and damages is based on mere conjecture, and not on legal evidence.

Taking all the evidence, and it does make out a prima facie case, entitling the plaintiff to go to the jury. The direct evidence offered, and legitimate inferences, which the jury might draw therefrom, would warrant their finding that the property in controversy was bought with the plaintiff's means, and that her husband merely acted as her agent in the purchase, as well as of the fact that the defendant was made aware of this before he finally consummated the purchase from the husband, by taking his bill of sale and by paying to him, without the plaintiff's consent, the bulk, if not all, the purchase money. As the instruction given by the court makes the finding of all these facts a condition precedent to the plaintiff's recovery, the defendant can not justly complain of that instruction.

But the judgment must be reversed, because there is no legal evidence to warrant the finding of the jury, either on the question of value or damages. The rule in this state has been settled by recent decisions, that the value of the property to be assessed by the jury, is its value at the date of the trial ( Chapman v. Kerr, 80 Mo. 158; Mix v. Kepner, 81 Mo. 96; Anchor Milling Co. v. Walsh, 24 Mo.App 97), and of such value there was no evidence...