Bollman Bros. Co. v. Peake

• Decision Date: 07 October 1902
• Citation: 96 Mo. App. 253,69 S.W. 1058
• Court: Missouri Court of Appeals
• Parties: BOLLMAN BROS. CO. v. PEAKE.

69 S.W. 1058

96 Mo. A. 253

BOLLMAN BROS. CO. v. PEAKE.

Court of Appeals at St. Louis, Missouri.

October 7, 1902.

LIMITATIONS — REPLEVIN — BAILED PROPERTY.

1. By force of section 1575, Rev. St. 1899, the necessity of a previous demand for the return of bailed property, before the owner can maintain an action of replevin to recover possession, is abrogated. Hence the statute of limitations runs against the owner's right to sue, although he makes no demand, if an act is done by the bailee inconsistent with the bailment, as by selling the property.

(Syllabus by the Court.)

Appeal from St. Louis circuit court.

Action by Bollman Bros. Co. against Henry Peake. Judgment for plaintiff, and defendant appeals. Reversed.

Davis & Williams, for appellant. Wm. C. & J. C. Jones, for respondent.

GOODE, J.

A piano is the property in controversy in this replevin case, which was tried by the circuit court on the following agreed facts: "On January 8, 1894, plaintiff leased the piano in question for an indefinite term to one Gordon, at five dollars per month, to whom the same was delivered; Gordon paying the first month's rent. It was agreed that Gordon might have the privilege of purchasing the piano within three months for three hundred and thirty-five dollars, less the rent he had paid. The defendant saw shortly thereafter a piano advertised for sale. On January 15, 1894, he called at the designated address, and found Gordon. Gordon stated to Peake that he (Gordon) had gotten the piano for a debt due him in Ohio, and wanted to dispose of it. Peake bought the piano for one hundred and fifty dollars, paying the money. After concluding the sale, Peake suggested some difficulty about moving the piano, and Gordon agreed to move and did move the piano to Peake's house; Peake paying him some two dollars therefor. Peake, further, was present at the moving of the piano into his house, and gave directions where it should be placed. The defendant used the piano continuously from January 15, 1894, the date of the purchase, to August 13, 1900, claiming title thereto openly to all with whom he came in contact. Defendant was until August 13, 1900, unaware that plaintiff claimed the piano. He did not come in contact with plaintiff, and at no time made claim of title thereto, or in the hearing of the plaintiff or any of its employés or officers. The week following his purchase he gave a party, at which he exhibited the piano to his guests, explaining to them the circumstances of its purchase. His entire honesty and good faith, with his ignorance of any other claim, is conceded. Gordon continued to pay rent for the piano during January and February of 1894, but defaulted in the March rent. Thereupon plaintiff called at the place to which it had delivered the piano, and found the piano and Gordon gone. Plaintiff immediately instituted active search for the piano and for Gordon, and from time to time, at intervals, renewed such search. Plaintiff was unable to find Gordon until the summer of 1900, when it discovered him in the Ohio penitentiary. It then demanded of Gordon the return of the piano. The demand was not complied with by Gordon, but, with the aid of information obtained from Gordon, plaintiff renewed its search for the piano; finally locating it in the possession of defendant on August 13, 1900. On August 13, 1900, plaintiff demanded from defendant the piano. Defendant refused to surrender it, and this suit was thereupon instituted."

The action was begun on the 20th day of August, 1900, and by comparison of this date with that on which ...