Absher v. Franklin

• Decision Date: 27 November 1906
• Parties: ABSHER v. FRANKLIN.
• Court: Missouri Court of Appeals

97 S.W. 1002

121 Mo. App. 29

ABSHER v. FRANKLIN.

St. Louis Court of Appeals. Missouri.

November 27, 1906.

1. TRIAL—ARGUMENT OF COUNSEL—OPENING AND CLOSING.

Where, in replevin, the controverted fact was whether plaintiff had authorized a certain person as his agent to sell the property involved, defendant having the affirmative of the only issue, the burden was on him to establish the same, and hence it was proper to permit him to open and close the argument.

2. JUSTICES OF THE PEACE—APPEAL—TRIAL DE NOVO—VERDICT—REPLEVIN.

Under Rev. St. 1899, § 4080, in relation to appeals from justices of the peace and providing that the trial in the appellate court shall be governed by the practice in such court, on appeal in replevin from the judgment of a justice of the peace the verdict in the circuit court is not required to be in conformity with sections 3920, 3921, controlling such proceedings before justices of the peace, but is required to conform to sections 4473, 4474, governing such actions in the circuit court.

3. APPEAL—HARMLESS ERROR—ERRORS FAVORABLE TO APPELLANT.

An unsuccessful plaintiff in replevin could not complain on appeal because the court failed to enter judgment against his sureties in the delivery bond, because it failed to order him to return the property or pay its assessed valuation, or failed to adjudge him to pay damages for the taking and detention.

Appeal from Circuit Court, Wright County; Argus Cox, Judge.

Action by Smith Absher against John Franklin. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The action is replevin for a steer. The facts in proof developed that the plaintiff, who owned a farm in Wright county, in the early part of the year 1902, removed therefrom with his family to the state of Washington and there remained for about 18 months. Upon removing from his farm, he left the same, and a number of cattle thereon, in the possession of his wife's brother, one Barnes, who resided on the farm. The steer in controversy was born after plaintiff's removal to Washington and is an offspring of one of his cows. During plaintiff's absence, the defendant purchased the steer calf from Barnes, in good faith, in whose possession it was, and paid an adequate price therefor. Plaintiff's wife separated from him in Washington and returned to Wright county. Thereafter plaintiff returned also and set up a claim to the steer, which the defendant had purchased from Barnes, to the effect that Barnes had no authority to sell the same to the defendant, etc. The defendant declined to surrender the same to the plaintiff, and this action was instituted before a justice of the peace to recover possession thereof. It found its way into the circuit court where, on a trial before a jury, a finding was had for the defendant, and the plaintiff appeals.

On the trial in the circuit court, the facts stated were made to appear, and it was not disputed that the steer in controversy was originally the property of the plaintiff. In defense of his title and right of possession to the steer, defendant asserted his purchase of the same from Barnes, and that Barnes had the right and authority to sell the same to him. To support the proposition, plaintiff's wife testified that her husband, the plaintiff, could neither read nor write; that she had done his writing and correspondence for him since their marriage many years before; that, while in the state of Washington, her husband directed her to write a letter to her brother, Barnes, instructing him to sell the steer or purchase it himself, if he so desired, and as he, the plaintiff, was not going to be at home, for Barnes to remit the proceeds of the sale to her at Washington; that Barnes did sell the steer and remitted the proceeds of such sale, $12, to her as directed. Mr. Barnes testified that he received the letter mentioned from the plaintiff in which he was authorized to either sell the steer or purchase it himself and remit to the plaintiff's wife the proceeds thereof; that, in accordance with this letter of authority and instruction, he purchased the steer himself and remitted the amount therefor as directed, and simultaneously therewith, he sold the steer to the defendant for $12, and that the defendant paid him therefor. The defendant testified that he purchased the steer from Barnes as Barnes' steer, and that Barnes sold it to him as his steer. Barnes testified to the same effect. Plaintiff strenously denies that he had at any time instructed his wife to write the letter mentioned, or that he had, in any manner, authorized Barnes to sell or purchase the animal, etc. The jury found the issues for the defendant. Plaintiff appeals.

F. M. Mansfield, for appellant.

NORTONI, J. (after stating the facts).

1. The court instructed the jury for the plaintiff, in substance: First, that if the jury believe from the evidence plaintiff was the owner and entitled to the possession of the steer at the time of the institution of the suit, they should find the issues for him. Second, that if the jury believed, from all the facts and circumstances in evidence, Barnes sold the steer without the knowledge or consent of the plaintiff, and converted the proceeds thereof to his own use, then the defendant was not an innocent purchaser, and they should find the issues for the plaintiff. The court instructed for the defendant, in substance: First, that if the plaintiff, through his wife, authorized Barnes to sell the steer, and that Barnes did accordingly sell the same to the defendant, Franklin, for $12, and remitted the same as directed, then Franklin acquired title by such purchase, and that it was immaterial whether the remittance was before or after the sale. Second, that if the jury believed from the evidence that the plaintiff, through letters, written with his authority by his wife to Barnes, agreed to sell the steer to Barnes for $12, and Barnes accepted the proposition and remitted the $12 therefor as directed, and afterwards sold the steer to Franklin, then Franklin acquired title thereby, and the finding should be for the defendant. Third, the usual instruction on credibility of witnesses, etc. Fourth, that if the jury believed from the evidence that the plaintiff, through his wife, sold the steer to Barnes, that Barnes purchased the same and paid therefor as directed, the finding should be for the defendant. Fifth, that if the jury believed from the evidence that plaintiff, through his wife, authorized Barnes to sell the steer, and that Barnes did so sell the steer to Franklin and receive pay therefor, it was in such case immaterial whether the plaintiff, Smith Absher, received the purchase price therefor or not, and the findings should be for the defendant. Sixth, that if the jury believe from the evidence that plaintiff, through his wife, authorized Barnes to sell the steer, and further believe that the plaintiff gave no directions as to whom said...