Boynton v. Miller

• Decision Date: 31 October 1876
• Citation: 63 Mo. 207
• Parties: JAS. BOYNTON, et al., Appellants, v. JOHN MILLER, Respondent.
• Court: Missouri Supreme Court

63 Mo. 207

JAS. BOYNTON, et al., Appellants,

v.JOHN MILLER, Respondent.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Vernon County Circuit Court.

Basset, for Appellants.

W. P. Johnson, for Respondent.

WAGNER, Judge, delivered the opinion of the court.

Plaintiffs, who claimed to be the owners of one hundred and twenty-two head of Texas cattle, instituted this action for their possession, alleging that they were wrongfully detained by the defendant. Defendant, in his answer, stated that plaintiffs were the owners of the cattle, but denied that they were entitled to the possession. As a defense he alleged that at a certain date, plaintiffs entered into a contract with him, by which it was agreed by and between the parties that the plaintiffs should deliver the cattle to the defendant, and that the same should be weighed at the time of such delivery, and that defendant should keep and feed them until the 1st of June next ensuing, and at that time possession was to be re-delivered to the plaintiffs; that for feeding, keeping and taking care of the cattle, defendant was to receive six cents per pound for every pound the cattle would weigh at the time of their return over and above what they weighed when they were delivered to the defendant. There was then an averment of their weight at the time they were delivered to the defendant, and what they would have weighed had they remained agreeably to the terms of the contract, and a claim for $2,796 dollars as damages.

Plaintiffs replied, denying that they entered into the contract as stated in the answer. They admitted that they agreed to enter into a contract, with the understanding and agreement that the defendant was not to take the cattle out of Bates County during the time of the existence of the contract, and was to keep them in good inclosed lots whilst he was feeding them, and was to keep corn for, and feed them in good manner, and was to make, execute, and deliver to the plaintiffs a good and sufficient bond with solvent security for the performance of the contract, and for the return of the cattle at the expiration thereof. The reply further alleged that defendant obtained possession of the cattle with the full understanding and express agreement that the contract should be entered into in writing, and that the bond should be given before the contract should be considered binding. There was then an averment that the defendant neglected and refused to enter into the written agreement, and that he refused to execute and deliver the bond; that he failed to keep corn for the cattle, and that he did not keep them in inclosed lots, and that he was about to take them out of Bates County, etc.

The trial was before the court sitting as a jury, and there...