Campbell & Davis v. Moll
| Decision Date | 14 January 1920 |
| Citation | 217 S.W. 538,205 Mo.App. 49 |
| Parties | CAMPBELL & DAVIS, a Co-partnership, Appellants v. LINUS MOLL, Respondent |
| Court | Missouri Court of Appeals |
Appeal from New Madrid County Circuit Court.--Hon. Sterling H McCarty, Judge.
Judgment reversed and cause remanded.
M. G Gresham and J. Val Baker for appellants.
(1) When the court gave instruction No. 2, for the defendant, he correctly declared the law on the burning of the second stack of straw; but when he refused the plaintiffs instruction I or "A," he left the jury to guess and grope in the dark as to the other two stacks, in fact entirely misinstructed; refusing a proper instruction asked by the plaintiff. Pepper v. Railroad, 98 Mo.App. 291; Knapp v. Kelly, 153 Mo.App. 196; Blackwell v Bailey, 1 Mo.App. 328; Meffert v. Dyer, 107 Mo.App. 462.
Ralph E. Bailey for respondent.
?
Plaintiffs, a copartnership, sued in a justice of the peace court to recover for three stacks of straw alleged to have been burned by defendant. The cause was appealed from the justice court to the circuit court, and there tried to a jury, resulting in a verdict and judgment for defendant, and plaintiffs appealed.
One Gus Smith in partnership with another cultivated the land on which the straw was grown, but it would appear that Smith dealt with the straw in question. Smith did not own the land, and did not live thereon, but had it rented and a tenant thereon, and had also crops other than the wheat from which this straw came. Defendant rented the land for the year following Smith's term. Smith testified that he turned over to defendant the wheat land for the purpose of plowing and sowing wheat between the 1st and 15th of July, 1916. That he left the straw just like it was, but that he told defendant that he had sold the straw, but that they had no agreement about letting it stay there on the land. That he sold the straw to plaintiffs between the 1st and 15th of August.
Defendant testified that Smith delivered possession of the wheat land to him on July 7th and told him on August 2nd that he had sold the straw and was going to bale it and that he, defendant, objected to any one going over his wheat land in order to bale the straw, and forbid Smith to bale it. That Smith did not inform defendant to when he had sold the straw, and that he did not know plaintiffs claimed it until they sued him. Defendant admitted that he burned two of the stacks, but claimed that one of the three stacks burned accidentally. His excuse for burning the straw was that one stack was in his way in plowing his wheat land, and the other was near his house, and was an old stack, having been threshed in 1915, and was a rat harbor, but the record is silent as to whether the rats had availed themselves of the haven provided.
Plaintiffs make two assignments of error. (1) That the court erred in refusing to give an instruction requested. (2) That the verdict is against the weight of the evidence.
The instruction requested by plaintiffs and by the court refused is as follows: "The Court instructs the jury that if you believe and find from the weight of the evidence in this case that the straw in question in this law suit belonged at the time of the burning to plaintiffs then the defendant, Linus Moll, had no right to intentionally burn the same, and if you further find from the evidence that he, the defendant, Linus Moll, did intentionally burn or have the same burned or any part of it, then your verdict will be for the plaintiff in such sum as you may think the straw intentionally burned by defendant or his agents was reasonably worth, not to exceed the amount sued for."
The court of its own motion gave this instruction: "The court instructs the jury that if you find and believe that the straw in controversy, or any part thereof, was burned by defendant by accident and without negligence on his part or intention on his part to burn, same, then the defendant is not liable for any straw so burned."
We think under the facts here the court erred in refusing to give the instruction requested by plaintiffs. If defendant had offered evidence tending to show that the straw was of no value, or that the owner had abandoned it then an instruction so worded as the one requested should be refused; but here there is no evidence tending to justify defendant in burning the straw. It is true he says that he did not know that plaintiffs claimed the straw till they sued him, but he knew that somebody owned it as Smith had told him that he had sold it, and was going to bale it, and defendant objected to it being baled on the ground that he did not want anyone passing over his wheat land. Defendant attempts to justify the refusal of the instruction requested by plaintiffs on the ground that it submitted a question of fact which the evidence did not tend to prove. This question went to the ownership of the straw. Defendant contends that Smith did not own the straw, and could pass no title to plaintiffs. The law does not support defendant in this contention. Smith grew the straw. He testified that he was the owner, and that he sold it to plaintiffs. If we comprehend defendant's position with reference to the ownership of the straw, it is that the straw when the wheat was threshed became the property of the landlord; or that if Smith had any title that he abandoned and lost it by reason of delivering possession to defendant, and thereafter the straw became the property of the succeeding tenant or the landlord. That the tenant and landlord might make a contract that the straw would be the property of the landlord is not questioned; but there is no evidence here of any such contract. The evidence shows that Smith had been cultivating this land for some two or three years, but it does not appear whether he was cultivating it under a written or oral contract or what the terms of his rent contract were. It appears also in the record that it was the general custom in the community where this straw was grown that the retiring tenant was permitted to bale his straw notwithstanding some other tenant might be entitled to plow the land for sowing to wheat for the coming year. Independent of this custom, unless there was a contract to the contrary, tenant Smith owned the straw as much as he...
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