Bruce v. Crysler

• Decision Date: 14 January 1920
• Docket Number: No. 2477.,2477.
• Citation: 217 S.W. 563
• Parties: BRUCE v. CRYSLER.
• Court: Missouri Court of Appeals

217 S.W. 563

BRUCE v. CRYSLER.

No. 2477.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by Frances Bruce against W. M. Crysler. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

Ward & Reeves, of Caruthersville, for appellant.

N. C. Hawkins, of Caruthersville, for respondent.

FARRINGTON, J.

The plaintiff brought an action in trover for a conversion against the defendant, alleging that she was the owner thereof on June 15, 1918, specifying the articles of household goods, wearing apparel, and furniture, and that on said date the defendant unlawfully, wrongfully, forcibly, and maliciously entered into and upon the possession of the property, exercised control and dominion over the same, and deprived plaintiff of the possession and use of the same, and converted the same to his own use and benefit, to the damage of plaintiff in the sum of $1,000, for which she prays actual damages. A second count was added, alleging that these acts were performed by the defendant maliciously, out of spite, and with malice and ill will toward her husband, G. B. Bruce, concerning which she prays judgment for $1,000 punitive damages. The defendant filed a general denial, and then, specifically answering, denied that plaintiff was and is the owner of the property described in the petition, and alleges that he (the defendant) was at the institution of the suit the owner of and entitled to the possession of the property sued for.

The facts of the case are that G. B. Bruce, husband of plaintiff, was a young man who was working for the defendant as an automobile mechanic. Defendant advanced him some $200 for the purpose of moving and establishing himself in a home. Bruce gave this money to his wife, who took it and deposited it in her name in a bank. Afterwards she purchased a part of the articles herein sued for from a furniture establishment, agreeing to pay therefore the sum of $398.70, and she executed a note for this amount and secured it by a chattel mortgage on the articles purchased. On the next day she gave a check to the furniture company for $125 out of the money which had been given her by her husband, and between that date, which was February 7, 1918, and June 11, 1918, she had paid $6 a week on the balance, making the total amount she had paid on her indebtedness to the furniture concern $209, leaving a balance due under the chattel mortgage of $189.70. In addition to this she was the owner of $219.75 worth of property which belonged to her individually and on which there was no mortgage. She, therefore, was the owner of property of the value of $618.45, and the proof introduced establishes this as a fair and reasonable value of her property which was owned by her on June 15, 1918. Her husband had been called by his exemption board, and was required to join the armed forces of the United States. His wife, wishing to return to her mother, who lived in Memphis, Tenn., went to the furniture concern, to which she had given a mortgage and procured consent from that concern to move the property to Memphis. She consequently packed up all of her property, amounting in value as aforesaid to $618.45, and placed it in possession of a carrier to be transported to Memphis.

On June 15th, the defendant here comes upon the scene. He brought suit in a justice court against G. B. Bruce for $250, procured an attachment writ, and levied on all of the property which had been packed and stored by plaintiff. After this attachment suit had been filed the furniture company filed an interplea, claiming under its mortgage on the property which had been attached and was covered by the mortgage. Subsequent to that time the plaintiff demanded of the defendant here a return of all of her property. The evidence shows that the defendant, who was plaintiff in the attachment suit, knew that the property had been purchased by the plaintiff here, and that she was claiming it. In addition to this it is shown that he gave an indemnity bond to the constable in the attachment suit. After plaintiff made claim for a return of her property, and the goods were still in the storage house, but held under attachment by the constable, the defendant consented to give her back all of her goods except those which were mortgaged, and sent his agent to the warehouse, and instructed the constable to turn over to her such as his agent should designate. As a consequence there was returned to the plaintiff here $219.75 worth of goods, concerning which there is no claim of damage other than being deprived of the use thereof for a little over 60 days. This left, being held under defendant's attachment writ, $398.70 worth of property on which there was a mortgage of $189.70, leaving the plaintiff here an equity in this property of $209. In September, something like 60 days after the defendant had attached this property, he then purchased from the furniture company its note and mortgage. In other words, he purchased the rights of the interpleader in the attachment suit. Both the plaintiff and defendant here recognized, and recognize now, the superior right of the chattel mortgage lien over plaintiff's ownership and over defendant's attachment levy. The plaintiff procured an order in the justice court to continue the attachment suit because of the fact that the defendant was in the military service of the United States, and that suit, so far as the record before us shows, is still pending.

The plaintiff recovered in this action which is in conversion, a judgment against the defendant in the sum of $538.49. The

total value of the goods attached and finally converted by the defendant to his own use was $398.70. This value is placed on these goods by the plaintiff's witnesses, and is not in dispute. At most this would be all that she could recover for the goods held by the plaintiff, and which were never returned to her. In addition to this she would be entitled under her petition to damages by reason of being deprived of the use of $219.75 worth of wearing apparel, table linens, etc., for a period of a little over two months, for which the jury in this verdict must have allowed her the sum of $109.79. Plaintiff testified that there was $30 worth of her property, not included in the mortgage, which was not returned to her. As the record stands, the total amount of damage shown to the plaintiff, for which she was entitled to a judgment against the defendant for the conversion in June,...