Carson v. Smith
| Citation | 34 S.W. 855,133 Mo. 606 |
| Parties | Carson v. Smith et al., Appellants |
| Decision Date | 17 March 1896 |
| Court | Missouri Supreme Court |
Error to Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.
Reversed and remanded.
James Black and Pratt, Ferry & Hagerman for appellants.
(1) The court erred in holding the jury law of 1891 was constitutional. (2) The plaintiff must be confined to the cause of action sued on. The cause of action stated is not one at law. France v. Thomas, 86 Mo. 80; Schradski v. Allbright, 93 Mo. 42. (3) A settlement with one of two joint tort feasors extinguishes the entire liability. Metz v. Soule, 40 Iowa 236. (4) There is no necessity in rescinding a contract to return what is worthless. (5) Conflicting and inconsistent instructions are erroneous. Bluedorn v. Railroad, 108 Mo. 439. (6) Interest according to the law of another state is only given in suits on contracts when the law is pleaded. Pauska v Daus, 31 Tex. 67; Templeton v. Sharp, 9 S.W. (Ky.) 696; 1 Sutherland on Damages, sec. 367. (7) But where there is no contract for interest, and as in case of conversion it is allowed as part of the damages, then the law of the forum governs. 11 Am. and Eng. Encyclopedia of Law 421; Clark v. Child, 136 Mass. 344; Shickle v Watts, 94 Mo. 410. (8) So we submit since the Kansas law was neither pleaded nor proven, and this was not a suit on a contract calling for interest, the law of the forum must govern and State ex rel. Robertson v. Hope, 121 Mo. 34, must reverse this case.
Beardsley, Gregory & Flannelly and W. M. Glenn for respondent.
(1) The court did not err in refusing to quash the panel of jurors. The act of 1891 referred to was not unconstitutional. All counties in the state at that time having, or which might thereafter have, the population referred to in the act were by its terms brought within the provision. Such legislation is general and not special. State ex rel. v. Pond, 93 Mo. 620; Ewing v. Hoblitzelle, 85 Mo. 64; State ex rel. v. Walker, 25 S.W. 851; McClay v. Lincoln, 32 Neb. 412. See, also, R. S. 1889, sec. 6059; R. S. 1879, sec. 6070. (2) The petition below was for damages for conversion of personal property, an action at law and not a suit in equity. The answer was filed upon this same theory, the instructions were given both for plaintiff and defendants in accordance therewith, and it can not now be contended that the facts stated in the petition justified relief in equity. (3) Plaintiff's instruction number 2 was right. It was the duty of appellants in order to rescind to place the respondent in statu quo. Whatever might be the position of the parties in a suit brought in equity for the rescission of the contract, at law defendants could not claim they had rescinded unless they had placed or offered to place the plaintiff in statu quo. Jarrett v. Horton, 42 Mo. 275; Cohn v. Reid, 18 Mo.App. 123. (4) This is not a case where appellants could rescind without going into a court of equity and bringing in all parties interested in the whole transaction. Spencer v. St. Claire, 57 N.H. 9; Gould v. Bank, 86 N.Y. 84; Cobb v. Hatfield, 46 N.Y. 533; Bailey v. Fox, 78 Cal. 389; Benjamin on Sales, sec. 452. (5) The instruction with regard to interest, if it be construed to be a positive instruction to find interest, was right under the Kansas law. Dodson v. Cooper, 37 Kan. 346; Simpson v. Alexander, 35 Kan. 235. If it be said that the latter case is not properly in evidence here, the court will take judicial notice of it and not send the case back for retrial, when the court will next time be required to give the same instruction on the introduction of this case in evidence. Campbell v. Wood, 116 Mo. 96. (6) The instruction given for plaintiff, number 8, upon the question of exemplary damages declares the law correctly. Paddock v. Somes, 51 Mo.App. 324; Maleck v. Railroad, 57 Mo. 20; Callahan v. Ingram, 26 S.W. 1084; Fulkerson v. Murdock, 53 Mo.App. 155. (7) Even though there might be found error in the instructions as to plaintiff's right to recover, the court will not award a new trial, because on the whole record the judgment below was clearly for the right party. It is conceded on all hands that both parties are bound by the contracts of June 16, 1888, unless these two facts concurrently exist: First, they were induced by fraud on Carson's part; second, defendants rescinded before action brought. The evidence fails to show the first to be true, the second is not true because upon the evidence offered by defendants themselves the offer was conditional, was not complete and did not propose to place plaintiff in statu quo. Deal v. Cooper, 94 Mo. 62; Sebree v. Patterson, 92 Mo. 51; Baker v. Shaw, 35 Mo.App. 611. (8) If there was any error in the instructions given as to the basis upon which the jury should fix the amount of their verdict in case they found for plaintiff, it was more than covered by the remittitur.
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 qualifications," in certain counties of this state, etc., approved April 1, 1891. (Laws, 1891, p. 172).
The facts connected with the transactions out of which this controversy arose are as follows:
On the twenty-fourth day of May, 1888, plaintiff purchased from C. F. Logan a stock of general merchandise, at Reid, Kansas, 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, Missouri, in the sum of $ 367, and to the firm of Clements, Hulme & Kelly, of Great Bend, Kansas, in the sum of $ 494.94.
At the time of the sale Logan executed to Carson a bill of sale to 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 sixteenth 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 16, 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. Cable R'y Co., 131 Mo. 1; Sherwood v. Grand Avenue R'y Co., 132 Mo. 339, 33 S.W. 774.
It is contended by defendants...
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