Bank of Darlington v. S. H. Powers
| Decision Date | 09 November 1903 |
| Citation | 76 S.W. 732,102 Mo.App. 415 |
| Parties | THE BANK OF DARLINGTON, Appellant, v. S. H. POWERS, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Gentry Circuit Court.--Hon. Gallatin Craig, Judge.
AFFIRMED.
Cause affirmed.
Ed. E Aleshire and Sam H. Benson for appellant.
(1) The court erred in refusing to give defendant's instruction 4, as under the law and evidence in this case it should have been given. By refusing it, the jury was deprived of the right to consider the Chattin & Butler note in arriving at their verdict. Menkens v. Menkens, 23 Mo. 252; Chouteau v. McGenis, 28 Mo. 187; State to use v Berning, 74 Mo. 87; Parker v. Straat, 39 Mo.App. 616. (2) The unlawful taking of chattels of another or if the party is in unlawful possession of the chattels of another and alters the nature of the chattels so that the owner is deprived of the right to control or exercise control of the same, constitutes a conversion. In this case the Bank of Darlington wiped out all of the several notes payable to S. H. Powers by Chattin & Butler, and took from them one note for three hundred dollars due thirty or ninety days after date, and bearing interest at the rate of seven per cent. Sparks v. Purdy, 11 Mo. 220; Allen v McMonagle, 77 Mo. 478; Ireland v. Horseman, 65 Mo. 511; Dusky v. Rudder, 80 Mo. 400; Bank v. Metcalf, 40 Mo.App. 494. (3) The court erred in giving plaintiff's instruction 1, concerning the Chattin & Butler note, as it limits the recovery to the actual value of the note at the time of its conversion; and then the jury are told that if they believe it was of no value then they could not allow the defendant anything. All of the testimony concerning the solvency of Chattin & Butler had reference to the day of the trial, and there never was any evidence introduced showing them solvent or insolvent in December, 1899, when the note was converted by plaintiff.
Blagg & Cummins for respondent.
(1) The court committed no error in refusing defendant's instruction 4, for it is clearly not the law, as it required the jury to find for the defendant in the sum of $ 300, at seven per cent from its date, without regard to value. Thomas Manufacturing Co. v. Huff, 62 Mo.App. 124. (2) Plaintiff's instruction 1 correctly states the law where property sued for in trover is a chose in action, as a bill, note, bond or other security for the payment of money. The measure of damages is prima facie the amount due on the security, but the defendant is at liberty to reduce that valuation by showing payment, insolvency of the maker, etc. Sedg. on Dam. (3 Ed.), p. 514 (side page 488.) Donahue v. Corby, 22 Mo. 393.
This is a suit on a promissory note dated December 1, 1900, for five hundred and seventy dollars, due in ninety days after date with eight per cent interest from maturity, payable at the plaintiff bank and credited with a payment of $ 70 made on July 23, 1901. The defense was payment.
It was disclosed on the trial that on and prior to the 28th day of May, 1895, the defendant, who was a manufacturer of well augers at the town of Stanberry, Missouri, was indebted to the Bank of Stanberry in the sum of $ 5,000, which bank held a number of promissory notes belonging to defendant as collateral security for said indebtedness; that said bank collected some of said notes, but others remained unpaid, viz., a note of one J. W. Huggins and one made by two persons under the names of Chattin & Butler which defendant claimed were turned over to and held by plaintiff as collateral security for the note in suit. Plaintiff admitted that the latter was held by it as such collateral security, but denied that it held the former as such security and introduced evidence on that behalf.
There was evidence tending to show that through the negligence of one W. F. Sager, the alleged agent of plaintiff, in failing to make a proper effort as directed by defendant to collect said Huggins note while he was solvent, it became of no value because of the after insolvency and death of the maker. The plaintiff's evidence was to the effect that said Sager was not its agent but that of the defendant entrusted with the collection of said note.
The defendant testified that without his knowledge and consent a new note was taken by the plaintiff in place of the original note of Chattin & Butler, which instead of being made payable to the defendant was made payable to the plaintiff. On the other hand, plaintiff's evidence tended to show that said note was so made payable to it at the special request of the defendant, and that at all times the makers thereof were insolvent.
The finding and judgment were for the plaintiff in the sum of $ 416.80, from which the defendant appealed.
Appellant's contentions are, that the finding and judgment are excessive and that the court committed error in refusing instruction...
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