Carson v. Smith

• Decision Date: 17 March 1896
• Citation: 133 Mo. 606,34 S.W. 855
• Parties: CARSON v. SMITH et al.
• Court: Missouri Supreme Court

34 S.W. 855

133 Mo. 606

CARSON v. SMITH et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1896.

CONSTITUTIONAL LAW — SELECTION OF JURY — APPEAL — REVIEW — ACTION FOR CONVERSION — WHEN MAINTAINED — DAMAGES — INSTRUCTIONS — PROVINCE OF JURY — EVIDENCE — CONTRACT — RESCISSION.

1. Act April 1, 1891, providing for and designating the manner of selecting petit jurors, and prescribing their qualifications, in certain counties, etc., is constitutional. Dunne v. Railway Co. (Mo. Sup.) 32 S. W. 641; Sherwood v. Railway Co. (Mo. Sup.) 33 S. W. 774, — followed.

2. Where a petition states a cause of action for conversion, and the answer and instructions are on the same theory, it will be heard and determined on appeal on such theory, though it contain some unnecessary allegations.

3. In an action for conversion of a stock of goods, it appeared that plaintiff bought the stock of defendants' debtor; that he afterwards sold it to defendants, and repurchased it on time; that by his contract he bound himself to pay the daily receipts to an agent of defendants, and for the faithful performance of the contract the parties bound "themselves to each other in the penalty sum of $665, as liquidated damages, to be paid by the failing party"; and that defendants afterwards attached and sold the goods on an indebtedness of plaintiff's vendor, on the

ground that the sale to him was fraudulent. Held, that such contract did not bar an action for conversion, or limit the amount of damages therein.

4. Where two separate firms attach a stock of goods on debts due from the owner's vendor, on the ground that the sale by the vendor was fraudulent, a settlement with one of such firms by such owner does not extinguish his cause of action for conversion, if he has any, against the other firm.

5. Plaintiff bought a stock of goods of defendants' debtor, and afterwards sold it to defendants and repurchased it on time. Defendants afterwards attached and sold the goods to satisfy a debt due them from plaintiff's vendor. Before the attachment, plaintiff paid part of the purchase money, which defendants did not offer to return. Held, that defendants could not rescind the contract of sale to plaintiff, without plaintiff's consent, and attach the goods, on the ground that the sale from their debtor to plaintiff was fraudulent.

6. Under Rev. St. 1889, § 4430, making it discretionary with the jury as to whether interest shall be allowed on the value of property wrongfully converted, it is error, in an action of conversion, to charge that, if the jury find for plaintiff, he is entitled to the reasonable value of the property, with interest at 6 per cent. from the time it was converted.

7. In an action for conversion of goods attached and sold by defendants, it is error to charge that if the taking and sale was malicious, and the bringing of the attachment was without probable cause, plaintiff is entitled to punitive damages, which the jury "will allow" him in addition to the value of the goods, since the allowance of exemplary damages is discretionary with the jury.

8. It is error to admit evidence of third parties showing the positions of trust plaintiff had held in his county.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by T. A. Carson against George C. Smith and others, partners as Smith, Hedden & Co., for the conversion of a stock of goods. From a judgment for plaintiff, defendants appeal. Reversed.

Jas. Black and Pratt, Ferry & Hagerman, for appellants. Beardsley, Gregory & Flannelly and W. M. Glenn, for respondent.

BURGESS, J.

Action in the nature of conversion, for the wrongful and willful taking and converting to their own use by defendants, at the town of Reid, in the county of Greeley in the state of Kansas, a stock of general merchandise, of which plaintiff claimed to be the owner and in the possession. The trial was by the court and a jury, which resulted in a verdict for the plaintiff in the sum of $1,458.50, of which he remitted $395.18, judgment being rendered in his favor for $1,088.32. After an unsuccessful motion for a new trial, defendants appealed to this court.

One of the questions involved, which confers jurisdiction on this court, is the constitutionality of the act of the legislature under which the jury was summoned before whom the case was tried, being an act entitled "An act providing for and designating the manner of selecting petit jurors, and prescribing their qualification in certain counties of this state," etc. Approved April 1, 1891. The facts connected with the transactions out of which this controversy arose are as follows: On the 24th day of May, 1888, plaintiff purchased from C. F. Logan a stock of general merchandise at Reid, Kan., at the price of $1,700, and in payment therefor gave him goods from the stock amounting to $36; transferred to him his equity in two tracts of land, valued at $900; $100, by delivering up to Logan a note for that amount executed by him to one H. T. McLaughlin, which Carson held; and by executing his own notes to Logan in the sum of $700. Logan at the time of this sale was indebted to defendants, wholesale merchants at St. Joseph, Mo., in the sum of $367, and to the firm of Clements, Hulme & Kelly, of Great Bend, Kan., in the sum of $494.94. At the time of the sale, Logan executed to Carson a bill of sale of the goods, and took from him an instrument of writing providing that if Carson failed to pay any of the notes given for the purchase price of the goods, when due, Logan might assist in selling, and all proceeds arising from their sale should be paid to him. Carson never paid anything more than $36 to Logan on the goods. On the 16th of January, 1888, J. L. Peck, representing defendants, and Kelly, of the Kansas firm, went to Reid to see Logan about his indebtedness to them, and learned from him and Carson that Carson had purchased the goods, and the terms of the sale. An agreement was then entered into between Logan, Carson, and the creditors, through their representatives who were present, that Logan should return to Carson the notes calling for $700, and the papers accompanying the same. Carson represented that he was the absolute owner of the stock of goods, and defendants claim that, on the faith of his representations, they, the Kansas creditors, and Logan agreed with Carson that he should, to the extent of $665, which he then owed Logan, assume the indebtedness of Logan to said creditors. Carson then executed to said creditors a bill of sale for said stock of goods; they executing to him at the same time an instrument of writing providing that the title to the goods should revert to Carson upon the payment by him to them of said $665, with interest. This writing also provided that sales should be made for cash only, and that all moneys received from sales, after paying therefrom such sums as might be necessary to replenish the stock, should be paid to said Peck as a credit upon the $665. This writing also provided that, for any violation of its terms by either party thereto, the penalty should be fixed at $665, as liquidated damages to be paid by the party failing to comply with its terms. Carson remained in possession of the goods. He testified that he paid Peck, from the sale of the goods, at one time, $18, and, at another, $40. The $40 payment was denied by Peck. About the last of June, Peck, becoming satisfied that the sale from Logan to Carson was fraudulent on Logan's part, went to Carson, and offered to rescind the contract of June 16th, but Carson refused to do so. Defendants then sued out an attachment against Logan, and had the goods attached as his property. A similar suit was also instituted by the Kansas creditors, which was dismissed. The goods were sold under defendants' suit against Logan, and purchased by them at the price of $500.

The first proposition with which we are confronted is the constitutionality of the jury law under which the jury were selected who sat upon the trial of the cause. It has been so often held by this court that the law is constitutional that it is unnecessary to do more than refer to some of the adjudicated cases on the subject, to wit: Dunne v. Railway Co. (Mo. Sup.) 32 S. W. 641; Sherwood v. Railway Co. (Mo. Sup.) 33 S. W. 774.

It is contended by defendants that plaintiff's cause of action, if any he has, is by proceeding in equity, and not for conversion. While there are some unnecessary allegations in the petition, it clearly states a cause of action for conversion, and the answer and instructions were upon the same theory; hence it must be heard and determined by this court on that theory. Defendants and Clements, Hulme & Kelly had purchased the goods from Carson, by and with the knowledge and consent of Logan, who had previously sold them to Carson. They were then sold back to...