Zwisler v. Storts

• Decision Date: 05 April 1888
• Parties: CONRAD ZWISLER, Appellant, v. W. B. STORTS et al., Respondents.
• Court: Kansas Court of Appeals

30 Mo.App. 163

CONRAD ZWISLER, Appellant, v. W. B. STORTS et al., Respondents.

Court of Appeals of Missouri, Kansas City.

April 5, 1888

APPEAL from Saline Circuit Court, HON. RICHARD FIELD, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

I. H STANFORD and H. M. HARVEY, for the appellant.

I. There is no evidence to support the verdict in this case, and it ought not to stand. Lionberger v. Pohlman, 16 Mo.App. 392; Ellis v. Bray, 79 Mo. 227; Fischer v. Transfer Company, 13 Mo.App. 133.

II. Plaintiff sues for the conversion of sixteen steers. If there is any dispute in the evidence as to the title of the cattle it is only to fifteen of them, and plaintiff should have had judgment for at least the value of one steer.

III. The court erred in giving instructions for defendants numbered one, two, and three, in this, that said instructions are not based upon the evidence given at the trial and tend to mislead the jury. For the same reason the court erred in amending plaintiff's first, second, and sixth instructions, and the case should be reversed. State v Bailey, 57 Mo. 131; Musick v. Railroad, 57 Mo. 134; McKeon v. Railroad, 42 Mo. 79; Raysdon v. Trumbo, 52 Mo. 35.

IV. The contract governs in this case. The evidence showed no sale of the cattle in controversy. It was simply a contract for a sale. The agreement was, that the delivery of the cattle and the delivery of the deeds were to be simultaneous acts, and no title to the cattle passed until the delivery of the deeds. Brunswick Co. v. Martin, 20 Mo.App. 158; Benj. on Sales, 334, and note, and authorities cited.

V. The sixth instruction of plaintiff and defendants' sixth instruction are contradictory of and inconsistent with each other, and the judgment should be reversed. Price v. Railroad, 77 Mo. 508; Stevenson v. Hancock, 72 Mo. 612; Henschen v. O'Bannon, 56 Mo. 298.

VI. The court erred in giving defendants' sixth instruction in this, that it leaves to the jury to say when a sale is completed; to say what facts constitute a sale. Wyatt v. Railroad, 62 Mo. 408. The instruction is altogether misleading.

RICH & RECTOR, for the respondents.

I. The verdict is supported by the evidence and the court will not disturb the finding unless the weight of evidence so preponderates in favor of the party complaining as to indicate such prejudice as would entitle the party to a new trial. Wilkerson v. Railroad, 26 Mo.App. 144; Taussig v. Schields, 26 Mo.App. 318; Bank v. Armstrong, 92 Mo. 265.

II. Plaintiff tried the cause on the theory that he was the owner of all the cattle, which theory the jury did not believe. Plaintiff cannot be heard in this court on the theory that Watkins only traded for fifteen head of cattle. No instruction was asked on this theory. Whetstone v. Shaw, 70 Mo. 575; Walker v. Owens, 79 Mo. 562; Nance v. Metcalf, 19 Mo.App. 190.

III. Where there is conflicting evidence as to delivery, it is a question of fact for the jury, and their finding is conclusive. Glass v. Gelvin, 80 Mo. 297.

IV. Instructions one, two, and three, given on the part of defendants, properly declare the law, and are amply supported by the evidence. Hill v. Snell, 6 Am. Rep. 216; Crews v. Garneau, 14 Mo.App. 505; Carroll v. Railroad, 14 Mo.App. 490; Bishop on Contracts, sec. 673; Addison on Torts [[[[[[Wood's Ed.] p. 520, sec. 496.

V. Instruction six, given on part of defendants, properly declares the law. Rickey v. Zeppenfeldt, 64 Mo. 277; Bass v. Walsh, 39 Mo. 192; Woodburn v. Cogdal, 39 Mo. 222; Williams v. Gray, 39 Mo. 201; Nance v. Metcalf, 19 Mo.App. 183; Glass v. Gelvin, 80 Mo. 297.

VI. The possession of Flesnor, plaintiff's agent, was, after sale, the possession of Watkins. Glass v. Gelvin, 80 Mo. 297; Worley v. Watson, 22 Mo.App. 546; Erwin v. Arthur, 61 Mo. 386.

VII. Plaintiff cannot complain of error in his own instruction. Clifton v. Sparks, 82 Mo. 115.

VIII. We respectfully submit that the points made by appellant in his brief are not well taken and that the authorities referred to by him do not sustain his position--that the jury looked the witnesses in the face and found a verdict for the right party.

PHILIPS P. J.

This is an action in trover for the conversion of certain cattle alleged to be the property of plaintiff. The controversy grows out of the following state of facts: The plaintiff, in the summer of 1886, resided in the town of Independence, state of Kansas. He owned a farm about twenty miles therefrom, on which he had said cattle. In the early part of June, 1886, one Watkins made plaintiff a proposition to trade him certain lots in said town for said cattle. There is also evidence touching a pony owned by plaintiff being included in the negotiation, and some fence wire. The parties agreed upon terms of exchange, to be consummated, as plaintiff contends, on said Watkins making deeds transferring to plaintiff said lots. The pony and wire were delivered about that time to Watkins, who caused a conveyance of one lot to be made to plaintiff therefor. The evidence was, that Watkins was unable to make title to the other lots, as they were held by a bank in said town as security for debts owing to it; and the bank would not convey until Watkins paid off the bank debt. The cattle remained on plaintiff's farm in charge of his agent or servant until the ninth day of August, 1886. During that night some one, without the knowledge or consent of the plaintiff or his servant, drove the cattle away from plaintiff's pasture. After search made by the servant, and failure to discover the whereabouts of the cattle, he went to Independence and informed plaintiff of the disappearance of the cattle. The plaintiff at once got out handbills advertising the cattle as having been stolen, and offering a reward for their recovery. The cattle were traced to Kansas City, Missouri, whither they had been brought by railway, and sold to commission merchants by a man named Pettingill. The defendants, who resided in Saline county, Missouri, and were cattle dealers, bought the cattle from said commission merchants, and shipped them to their farm in Saline county, where the plaintiff traced them, and made claim of property to defendants. The parties came to Kansas City to see if the commission merchants would adjust the matter. Failing in this, it was agreed that plaintiff would pursue the thief, and see what he could get out of him; and if he failed he was to return and make proof of title. The plaintiff entertaining a suspicion that said Watkins was privy or accessory to the eloigning of the cattle procured his arrest and prosecution for the theft, but without conviction. Whether this prosecution failed from lack of proof that Watkins participated in the trespass, or other ground, the evidence does not disclose. In the meantime said Pettingill had been convicted of some other crime, and plaintiff did not prosecute him. Plaintiff then brought this action, which resulted in a verdict and judgment for defendants; from which plaintiff has appealed.

I. The cause was tried by both parties on the theory that plaintiff did own the cattle about the first of June, 1886. This was necessarily so because the defendants sought to justify their taking of the cattle through said Watkins by virtue of his contract of purchase from plaintiff. Where the plaintiff is proved or admitted to be the owner of property at a given time the presumption of law is, that he so continues to be, until there is a change of ownership by sale or other disposition. Lawson Pres. Evid. 164. And, as said by Shaw, C. J., in Magee v. Scott, 9 Cush. 150: " Whoever relies on such change must prove it; the proof lies on him; * * * that presumption of ownership continues until some alienation is shown. A party having this ownership does not lose it by permitting another to be in possession. The ordinary mode of proving property is, proving that it was purchased and paid for, and it will be deemed in law to be the purchaser's until something is shown to change the title, and merely parting with the possession affords no conclusive evidence of such change. Possession is prima-facie evidence of title, good against everybody but one proving property; that is, against any one but the right owner." The ownership of plaintiff in these cattle existing beyond question in June, 1886, the burden rested upon the defendants to show plaintiff had parted with the ownership.

The circuit court, as indicated by the amendments made by the court to plaintiff's instructions, as well as those given on behalf of defendant, tried the case on the theory that there was evidence tending to show that Watkins was the person who removed the cattle from plaintiff's pasture, and that defendants acquired their possession through him. It is error to submit a case to the jury on a theory not supported by the evidence. White v. Chaney, 20 Mo.App. 389-97; Boatmen's Savings Bank v. Overall, 16 Mo.App. 570; Skyles v. Bollman, 85 Mo. 35. There was absolutely no evidence to warrant such instructions. To assume that Watkins carried away the cattle and sold them is to indulge in sheer speculation and conjecture, which courts in dealing with property interests should never permit. It cannot be maintained that this misdirection, or assumption was not hurtful to the plaintiff. As said in Willis v. Stevens, 24 Mo.App. 505: " The jury, being unlearned in the law and looking with reliant respect to the directions of the court, may have accepted unchallenged the existence of such fact as being somewhere in the case, otherwise the court would not have adverted to it."

II. Was there really any substantial evidence presented at the trial to justify the verdict of the jury? The only evidence of any contract of sale between plaintiff...