Bosse v. Thomas

• Decision Date: 04 April 1877
• Citation: 3 Mo.App. 472
• Parties: CHARLES H. BOSSE, Appellant, v. EMILE THOMAS, Respondent.
• Court: Missouri Court of Appeals

3 Mo.App. 472

CHARLES H. BOSSE, Appellant,

v.EMILE THOMAS, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 4, 1877.

1. In an action for the claim and delivery of specific personal property, the petition need not allege everything required to be stated in the affidavit.

2. Where, in such a proceeding, defendant makes a general denial of title in plaintiff, he may justify under legal process against the rightful owner.

3. A sale of personal property, unaccompanied by a change of possession, is void as to creditors of the vendor, both prior and subsequent.

4. Where the jury returns an informal verdict, it is not error for the court to suggest a correct form, conforming to the obvious intent of the jury.

APPEAL from St. Louis Circuit Court.

Affirmed.

Gottschalk, for appellant, cited: Wag. Stat. 1015, sec. 12; Northrup et al. v. Mississippi Valley Ins. Co., 47 Mo. 443; Pawley et al. v. Vogel, 42 Mo. 291; Jones v. Evans, 62 Mo. 381; Kiskadden v. Jones, 63 Mo.

Henry M. Bryan, for respondent, cited: Pawley et al. v. Vogel, 42 Mo. 299; Claflin v. Rosenberg, 42 Mo. 439; McDermot v. Barnum, 19 Mo. 204; Woodford v. Stephens, 51 Mo. 443; Walker v. Walker, 25 Mo. 367; Shirley v. Shirley et al., 9 Paige, 363; Tyler on Covert, 1st ed., 449, sec. 320, p. 436, sec. 309; Long v. Cockrell, 55 Mo. 93.

BAKEWELL, J., delivered the opinion of the court.

This is an action for the recovery of specific personal property. Plaintiff, in his petition, states that he is the owner, and entitled to the possession, of certain personal property described, and valued at $500, and that defendant unlawfully claims the same. The answer of defendant denies the allegations of the petition.

The testimony showed that plaintiff was the trustee of the separate estate of Barbara Lutz, wife of George A. Lutz; that Mrs. Lutz had such separate estate, consisting of realty worth $16,000, and also received money and wines from her father; that in 1868 George A. Lutz was residing with his wife and carrying on a cooperage and wine business on Fourteenth Street in St. Louis, and owed debts; that he then sold out to plaintiff, as trustee of Mrs. Lutz, who paid him $5,000 cash of Mrs. Lutz's money for the business and stock in trade; that of the goods so sold a wagon and horses were part of the goods sued for in the action, the other goods now claimed having replaced those originally sold in the course of trade; that at the time of the sale to plaintiff as trustee there was not, and never had been, any open and notorious change of possession; the business was carried on just as before; the bill-heads all bore the name of George A. Lutz, and all receipts and checks were given by him, in his own name. The plaintiff did not reside near the cooperage, and never personally gave any attention to the business. In 1874 and 1875 George A. Lutz was carrying on the cooperage and also a milling business on Christy Avenue. This was the testimony of plaintiff himself on his own behalf.

The defendant showed that he was sheriff of St. Louis, and, as such sheriff, seized the goods claimed, as the property of George A. Lutz, by virtue of an attachment issued out of the Circuit Court. To this evidence plaintiff objected, as incompetent under the pleadings. There was a verdict for defendant for $500, the value of the property, and $25 damages for its detention; and the usual judgment.

The court, at the instance of plaintiff, directed the jury to find for plaintiff, if they believe from the evidence that the goods were in good faith bought by plaintiff with money of the separate estate of Mrs. Lutz, and were in the possession of Bosse when taken by defendant; and also instructed the jury that fraud could not be presumed, and must be proved.

The court refused to give the following instructions asked for plaintiff:

“If the jury believe from the evidence that plaintiff was in possession of the property in dispute, as owner thereof, at the time defendant took said property, they will find for plaintiff.”

The following instructions were given at the instance of defendant.

“1. The fact that Lutz was employed to work in the shop and attend to the business, if the jury so believe, does not prevent or exclude the possession by Bosse, if the goods were actually given into his possession visibly and notoriously.

2. That unless the sale by Lutz to Bosse was accompanied with actual, visible, and exclusive possession and control of the articles sold, within a reasonable time--regard being had to their situation--then the sale was void as to creditors, prior or subsequent, of said Lutz.

3. The jury are instructed that, although Charles H. Bosse might hold personal property as trustee for Barbara Lutz, for her sole and separate use, and allow said property to remain in the possession of her husband, George A. Lutz, yet, as against the creditors of said George, the evidence of said trust should be clear and satisfactory, and the possession and control of said property by the said George should be consistent with the nature of said trust; and if the jury find from the evidence that the said George was held out, or allowed to hold himself out, by the said George H. Bosse and Barbara Lutz as the apparent owner of said property, and as the principal in the cooperage business in which said property was used, or to which it was incident, then, as against the creditors of said George who sold him goods upon the credit of his apparent ownership of said property and control of the business as principal in which said property was used, or to which it was incident, the said Charles H. Bosse and Barbara Lutz are estopped from asserting any title thereto.

4. The jury are instructed that, if they believe from the evidence that the personal property for which this action is brought, or any part thereof, was acquired by Barbara Lutz, and came into her possession while she was the wife of George A. Lutz, the title to said property acquired as aforesaid and coming into her possession vested absolutely in her husband, George A. Lutz, unless they further believe from the evidence that said property was conveyed to said George A. Lutz, or some third person, for the sole and separate use of the said Barbara; and they are further instructed that they should not find that there was such a conveyance to her sole and separate use unless they believe the evidence of such conveyance to be clear and unequivocal.

5. The jury are instructed that, if they believe from the evidence that the alleged sale, in 1868, of the personalty by George A. Lutz to Charles H. Bosse as the trustee of Barbara Lutz was made with intent on the part of these persons to hinder, delay, or defraud the existing or subsequent creditors of said George, then as against the creditors, or any of them, said sale was fraudulent and void.

6. The jury are instructed that although they may believe from the evidence that Charles H. Bosse was the trustee of Barbara Lutz, for her sole and separate use, of any estate or property whatever, yet if they believe from the evidence that the proceeds of such separate estate or property, or any portion thereof, came to the possession of said Barbara, and were by her put into the possession of her husband, George A. Lutz, who either retained the possession thereof or purchased other property therewith which came into his possession, then such property so in his possession became his property, and was liable to attachment for his debts in a proper case, unless the jury further find that there was some agreement between the said George and Barbara that he should hold said property as her trustee, or that the title should be vested in any other person for her separate use.”

1. The first question that presents itself for determination in this case is whether under our code of practice, when in an answer to a petition claiming specific personal property the defendant merely traverses the allegations of the petition, and does not justify or plead any special matter in defense, he will be allowed to show property in himself.

So far as we know, this question has never directly been passed upon in this State, and it has been the practice on the part of careful pleaders, when the defendant claims special property in the goods, as sheriff, by...