Asadorian v. Sayman

• Decision Date: 06 April 1926
• Docket Number: No. 19135.,19135.
• Citation: 282 S.W. 507
• Parties: ASADORIAN et al. v. SAYMAN.
• Court: Missouri Court of Appeals

282 S.W. 507

ASADORIAN et al. v. SAYMAN.

No. 19135.

St. Louis Court of Appeals. Missouri.

April 6, 1926.

Rehearing Denied April 27, 1926.

Appeal from St. Louis Circuit Court; Moses Hartman, Judge.

"Not to be officially published."

Action by Alexander H. Asadorian and another, copartners doing business as A. H. Asadorian & Co., against T. M. Sayman. Judgment for plaintiffs, and defendant appeals. Affirmed.

Hay & Flanagan and Charles E. Morrow, all of St. Louis, for appellant.

William G. Voorhees and Alphonso Howe, both of St. Louis, for respondents.

BENNICK, C.

This is an action brought by plaintiffs against defendant for the alleged conversion of certain rugs. The petition was originally in three counts, and upon a trial of the case, judgment was rendered for plaintiffs on all three counts, from which an appeal was taken by defendant to the Supreme Court, which court, by its decision reported in 233 S. W. 467, reversed the judgment outright as to counts 1 and 3, and reversed and remanded the judgment as to count 2. Upon the second trial of the case on such count the verdict was for plaintiffs in the sum of $1,200, with interest thereon in the sum of $877.60, aggregating $2,077.60, and judgment rendered thereon, from which defendant has appealed.

The petition alleged that on or about March 14, 1912, plaintiffs were the owners of a certain stock of rugs, 57 in number; that on said date defendant forcibly, willfully, wrongfully, and without color of right, entered the premises of plaintiffs, and took and carried away the said rugs, and unlawfully converted the same to his own use.

The answer was a general denial coupled with a plea of res adjudicate, in that by virtue of the judgment and decree of the Supreme Court it had been finally determined and adjudicated that plaintiffs had breached the provisions of the contract for the sale of rugs entered into between them and defendant, and that the defendant, therefore, had the right to take full possession, charge, and control of the business and premises of plaintiffs. The reply was conventional.

The evidence disclosed that on September 3, 1910, plaintiffs, husband and wife, entered into a written contract with defendant, by the terms of which it was agreed that on said date defendant would supply plaintiffs with a stock of rugs, which they should sell on a commission basis for his account; that defendant would replenish the stock from time to time as was necessary, and that rugs thereafter acquired by plaintiffs during the life of the contract should become the property of defendant and should be sold for his account ; that, upon the failure of plaintiffs to comply with any of the provisions of the contract, defendant should be authorized to take full possession of the premises and business; and that said contract should terminate on January 1, 1912.

Plaintiffs' store was located at 386 North Euclid avenue, in the city of St. Louis. The business was conducted by them at this location under the above agreement with defendant until January 1, 1912, upon which date the contract expired by reason of its own provision. Thereafter plaintiffs remained at the same address, carrying on a cleaning and repairing business and making occasional sales, until the controversy which forms the basis of this suit arose.

Plaintiffs' evidence tended to show that on February 13, 1912, Mr. Asadorian purchased on his own account a total of 23 rugs in New York City; 3 Saruks, 1 Serappi, 7 Beloughistans, and 3 doormats were bought from A. E. Kazan & Co. and 9 Anatolian mats from A. & M. Karagheusian. These rugs were received in St. Louis about February 25, 1912 and were placed in plaintiffs' store on North Euclid. Plaintiff:; also, from time to time, acquired used rugs from their customers in St. Louis.

It appears that a number of rugs which were the property of Dr. Sayman had been retained in plaintiffs' store after the termination of the business relationship between plaintiffs and defendant, and that on Sunday, March 10, 1912, defendant in company with Oscar C. Kramer, his bookkeeper, William R. Rowse, one of the employés in his soap business, and John S. Leahy, his attorney, came to the store and, together with Asadorian, made a complete check of the Sayman stock. This work occupied practically the entire day.

It was shown that on this occasion Dr. Sayman in some manner obtained a key to the store. Asadorian knew this fact, although he testified that he did not give the key to defendant. However, by reason of defendant's possession of the key, on Wednesday, March 13, Asadorian put a padlock on the door to the store and, upon closing the store at 6 o'clock or thereabouts that evening, he locked the door, using the padlock, as well as the lock to which defendant had the key. When Asadorian left the store, his rugs were inside with everything in its ordinary condition.

About 11:30 p. m. on the night of March 13, Frank J. Tucker, a police officer, passed the store on his beat and saw defendant with two or three other men moving the rugs out of the store and taking them into a building two doors down the street. Defendant at the time informed the officer that he had an interest in the store. About 1 o'clock Tucker passed the store a second time and observed that the padlock had been torn loose at one side and was hanging on the door.

On the following morning, Thursday, March 14, Asadorian came to his store and observed that the padlock had been pulled loose, the store entered, and everything he had in the store carried away. Edward H. Mason, a driver of an express wagon, came to the store at 7:30 o'clock and saw that the padlock had been pulled loose; that all the rugs had been removed; and that Asadorian's desk had been broken open and the papers scattered over the floor. Mrs. Asadorian testified to having seen the same condition about 8:30 o'clock.

Later in the day Dr. Sayman informed Asadorian that he had moved the rugs away. On March 21, Asadorian went to the building in which defendant had taken the rugs and there had a conversation with defendant and his bookkeeper, Kramer. The rugs were checked over and 21 of the 23 rugs Asadorian had purchased in New York City were found. Kramer then, in " defendant's presence, gave Asadorian a receipt for the 21 new rugs, but refused to receipt him for the remaining rugs, the property of Asadorian, which had been carried away, assigning as his reason that they were secondhand.

Asadorian at the time demanded of defendant that his property be returned to him, but was refused. He testified that he had never authorized defendant to remove the rugs, and that their reasonable value was $2,000.

Defendant's evidence tended to show that on Sunday, March 10, 1912, when defendant, Kramer, Rowse, and Leahy were in plaintiffs' store, Asadorian gave a key to the premises to defendant, and told him that he could take his stock of rugs out of the store and do whatever he wished with them; that the work of checking the rugs was not completed until Monday night, March 11; that Asadorian assisted in the checking both on Sunday and on Monday; that on Monday, March 11, at defendant's request, Rowse rented a storeroom two doors north of plaintiffs' store, into which defendant's stock of rugs could be moved; that on Tuesday night, March 12, defendant, together with 5 of the men from his factory, came to the store early in the evening, after the factory had closed, for the purpose of moving the rugs; that Asadorian knew that the rugs were to be moved; that defendant opened the door with his key; that there was no padlock on the door at that time; that no rugs were removed, except those that had previously been checked as the property of defendant; that the removal was completed by 12:30 o'clock; that 62 of defendant's rugs were out on approval, 16 of which were subsequently returned by Asadorian; and that no receipt was given Asadorian by Kramer for 21 of the rugs.

Although defendant unsuccessfully demurred to the evidence both at the close of plaintiffs' case and again at the close of the whole case, the question of the sufficiency of the evidence to make a case for the jury is not questioned.

The first assignment of error has to do with the action of the court in giving instruction No. 1 for plaintiffs. This instruction, in part, follows:

"The court instructs the jury that, if you believe and find from the evidence in this case that on or about the 14th day of March, 1912, the plaintiffs were copartners, doing business in the city of St. Louis under the firm name of A. H. Asadorian & Co., and that the plaintiffs at said time were the owners of certain rugs mentioned in the evidence, which they were keeping in their store building at 386 North Euclid avenue in said city, and if you further believe and find from the evidence that on or about the said 14th day of March, 1912, the defendant, without the consent of the plaintiffs, took and carried away the said rugs belonging to the plaintiffs and has not returned the same to plaintiffs, then your verdict must be in favor of the plaintiffs and against the defendant.

It is defendant's contention that this instruction is erroneous, for the reason that it assumes in the first part of the instruction that the rugs were being kept at 386 North Euclid avenue, and in the latter part that said rugs belonged to the plaintiffs. As to the second alleged assumption, we note that the instruction expressly requires the jury to find that the plaintiffs were the owners of the rugs. As to the first, counsel for plaintiffs submit that this instruction is a copy of the instruction approved by the Supreme Court on the former appeal of this case, and for such reason is not at this time subject to criticism. While this fact may be true, the instruction is not set out verbatim in the Supreme Court's opinion, and it does not appear that the particular point urged here was raised before that court. However, even if...