Broome v. Wright

• Decision Date: 29 April 1884
• Citation: 15 Mo.App. 406
• Parties: GEORGE W. BROOME, Respondent, v. GEORGE C. WRIGHT, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 406

GEORGE W. BROOME, Respondent,

v.GEORGE C. WRIGHT, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 29, 1884.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

E. A. B. GARESCHE, for the appellant.

KRUM & JONAS, for the respondent.

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

This was replevin for the possession of two mares. Plaintiff gave bond on commencing the action, and the animals were delivered to him under the usual delivery order. There was a verdict for plaintiff, and judgment that he retain possession and recover his costs.

The animals in question were both thoroughbred; one of them had some reputation on the turf, the other was under two years, and had never been trained. The testimony of plaintiff is to the following effect: In November, 1882, plaintiff owned both of the mares. One of them was in Randolph County, and the other at Mr. Hunt's racing stables at the Cote Brilliante track in St. Louis. At that time, defendant suggested to plaintiff that he would like to winter the mares at his farm in St. Louis County and train them for the coming season. Plaintiff and defendant talked the matter over at Mr. Hunt's office, in the presence of Hunt and his clerk, Zeibig. Plaintiff swears that they agreed that defendant was to take charge of the mares. Plaintiff was to deliver the black mare to defendant at Pacific Station, and defendant was to take the other mare from Hunt's stable. Defendant was to winter the animals at his farm as becomes race horses: he was to handle them, give them exercise, see to them, keep them warm, and superintend their treatment by a man who was to have constant charge of them; they were not to be left out to injure themselves. In consideration of this care and attention, and that defendant was to bear all the expense of wintering and training them, defendant was to have a one-half interest in the mares, and plaintiff to have a certain percentage of their winnings and increase; but, if defendant failed to give the animals the proper care due to first-class race horses, he was to forfeit all interest in the animals, and the entire property in them was to revert to plaintiff. The details of the agreement were not settled; the agreement was to be reduced to writing, and all matters of detail were to be then arranged. Defendant then took the younger mare from Hunt's stables to his farm, and plaintiff delivered the black mare to defendant at Pacific Station. Defendant put plaintiff off, from time to time, about the written agreement, and said that Zeibig would attend to it, and he neglected to execute the agreement in writing and finally refused to do so. Then, on the 3d of January, 1883, plaintiff reduced the agreement to writing, according to his understanding of its terms, and took it to Hunt's office, where defendant and plaintiff usually met, and left it with Zeibig. A month afterwards, Zeibig returned this writing to plaintiff, with the statement that defendant would not sign any such thing as that. After that, defendant seemed to avoid plaintiff. Plaintiff left word with Zeibig that he insisted upon the completion of the contract, and wrote to defendant several letters on the subject; but could not get from defendant any statement of his reasons for refusing to execute the written agreement. Plaintiff saw the mares in February, at Cote Brilliante, in the hands of a trainer. They were then both in poor condition, and had the appearance of having been insufficiently fed and cared for during the winter. Plaintiff then ascertained the charges and expenses to which defendant had been put about the animals whilst in his charge, including a reasonable amount for wintering them, and tendered this amount to defendant, and demanded possession of the animals. Defendant refused to receive the money or deliver up the mares, whereupon this action was brought.

Defendant introduced witnesses whose testimony tended to show that the understanding as to the horses was not that stated by plaintiff, that they were well attended to during the winter, and whose testimony contradicted that of plaintiff in many important particulars. There was also testimony on behalf of defendant tending to show that plaintiff and defendant fully agreed as to the terms of their bargain at the meeting in Hunt's office, and that nothing remained to be done but to reduce it to writing. There was a great deal of testimony as to the value of the mares, which was variously estimated at from $2,000 to $25,000. The witnesses, with the exception of Zeibig, were all men connected with the turf as trainers or owners of running horses, or as men in the habit of betting upon races.

The case was submitted to the jury on the following instructions, of which the first two were given at the instance of plaintiff, and the others at the defendant's instance.

1. “If the jury believe from the evidence that, at the time when plaintiff demanded the return of the horses (if they find he made such a demand), the defendant refused to deliver them on the ground alone that he had an interest in them and in his supposed contract, then plaintiff was not obliged to even tender expenses and pay for keep to defendant before bringing suit.

2. The court instructs the jury that, when a verbal agreement is assented...