Citizens' Bank of Sikeston v. Scott County Milling Company

• Decision Date: 08 July 1922
• Citation: 243 S.W. 433,210 Mo.App. 603
• Parties: CITIZENS' BANK OF SIKESTON, Respondent, v. SCOTT COUNTY MILLING COMPANY, Appellant
• Court: Missouri Court of Appeals

243 S.W. 433

210 Mo.App. 603

CITIZENS' BANK OF SIKESTON, Respondent, v. SCOTT COUNTY MILLING COMPANY, Appellant

Court of Appeals of Missouri, Springfield

July 8, 1922

Appeal from Scott County Circuit Court.--Hon. Frank Kelly, Judge.

AFFIRMED.

Judgment affirmed.

R. E Bailey and Ward & Reeves, for appellant.

(1) A plaintiff cannot sue on one cause of action and recover on another. Recovery must always depend on the cause of action stated in the petition. St. Louis v. Wright Contracting Co., 210 Mo. 491, 109 S.W. 6; Henry County v Citizens Bank, 208 Mo. 209, 106 S.W. 622; Carson v Cummings, 69 Mo. 325; Clements v. Yeates, et al., 69 Mo. 623; Ensworth v. Barton, 60 Mo. 511; Edelen v. Strong, 34 Mo.App. 287, l. c. 294. (2) An instruction covering the whole case and directing a verdict for either party must not ignore the evidence and issues presented by the opposite party. Enloe v. American Car and Foundry Co., 240 Mo. 443, 144 S.W. 852; Barr and Martin v. Johnson, 170 Mo.App. 394, 403, 155 S.W. 459; Welton v. Insurance Co., 162 Mo.App. 316, 141 S.W. 1138; St. Louis Packing Co. v. Mertens, 150 Mo.App. 583, 131 S.W. 354. (3) Instructions not based on the evidence are erroneous. Smith v. Sedalia, 152 Mo. 283, 53 S.W. 907; Press Brick & Machine Co. v. Gratiot, 151 Mo. 501, 52 S.W. 401; Benne v. Miller, 149 Mo. 228, 50 S.W. 824; Ragan v. Kansas City, 144 Mo. 623, 46 S.W. 602. (4) It is error to give contradictory or conflicting instructions. Blendorn v. Railroad, 108 Mo. 439; Stevenson v. Hancock, 72 Mo. 612; Henschen v. O'Bannon, 56 Mo. 289; Otto v. Brent, 48 Mo. 23; Union Bank v. National Bank, 64 Mo.App. 253; Jones v. Railway, 59 Mo.App. 137; Hoover v. Insurance Co., 93 Mo.App. 111. (5) It is the province of the jury to pass on questions of fact. Lay v. Insurance Co., 7 Mo.App. 566; Massey v. Tingle, 29 Mo. 437; Candy v. Railway, 85 Mo. 79; Hunt v. Missouri R. Co., 14 Mo.App. 160; Roddy v. Railway, 104 Mo. 234, 15 S.W. 1112; Gay v. Tielkemeyer, 64 Mo.App. 112; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810; Bennett v. Ry. Assn., 242 Mo. 125, 145 S.W. 433.

Ray B. Lucas and Harry C. Blanton for respondent.

(1) The point was not made in the motion for a new trial that there was a complete failure of proof, and hence such failure of proof, if any, cannot be passed on by this court. Secs. 1267, 1512, R. S. 1919; Shantz v. Shriner, 150 S.W. 727, 167 Mo.App. 635; Fox v. Young, 22 Mo.App. 386; Putnam v. Railway, 22 Mo.App. 589; Baking Powder Co. v. Baking Powder Co., 82 Mo.App. 19; Stone v. Wilfskill, 59 Mo.App. 441; Pierson v. Slifer, 52 Mo.App. 273; Bevier Co. v. Watson, 107 Mo.App. 451, 80 S.W. 287; Avery v. Tucker, 118 S.W. 672, 137 Mo.App. 428; State v. Scott, 113 S.W. 1069, 214 Mo. 257. (2) Any wrongful taking or assumption of a right to control or dispose of property constitutes a conversion. Any wrongful act which negatives or is inconsistent with plaintiff's right, is per se a conversion. Allen v. McMonagle, 77 Mo. 478, l. c. 481; McLachlin v. Barker, 64 App. 511, 521; Dusky v. Rudder, 80 Mo. 407; Faffayette Bank v. Metcalf, 40 Mo.App. 494; 38 Cyc., p. 2005; 26 R. C. L., p. 1098, sec. 3. (3) A mortgagee in possession or entitled to possession can maintain an action in trover and conversion. Swinney v. Gouty, 83 Mo.App. 551; Hausmann v. Hope, 20 Mo.App. 193, 198; McCandless v. Moore, 50 Mo. 511; Lafayette County Bk. v. Metcalf, 40 Mo.App. 494; Golden v. Moore, 104 S.W. 481, 126 Mo.App. 518; 26 R. C. L., sec. 47, p. 1136; 38 Cyc. 2053, sub-section 14; 2 McQuillin Mo. Prac., p. 1287, sec. 2089; American State Bank v. Seattle Grain Co., 154 P. 443, 89 Wash. 376. (4) On defendant's demurrer to the evidence, all of the evidence on behalf of plaintiff must be considered as true, and from it must be drawn in plaintiff's favor all reasonable inferences, and, where defendant has offered testimony, such testimony, if any, favorable to the plaintiff must be considered, and all unfavorable testimony disregarded. Knoche v. Pratt, 187 S.W. 578, 194 Mo.App. 300; Peters v. Lusk, 206 S.W. 250, 200 Mo.App. 372; Lynch v. Gaslight Co., 223 S.W. 111; Wagner v. Pryor, 222 S.W. 857, 204 Mo.App. 478; Conley v. Lafayette Co., 221 S.W. 165, 204 Mo.App. 37; Hague v. Threadgill, 236 S.W. 895. (5) Demand is merely evidential and not necessary to maintain trover and conversion either where such demand would have been useless or where an actual conversion occurs. Milliken v. Larrabee, 192 S.W. 103; Lafayette Bank v. Metcalf, 40 Mo.App. 494; Newman v. Trust Co., 88 S.W. 6, 189 Mo. 423; Nat'l Bk. of Commerce v. Morris, 114 Mo. 255; McLachlin v. Barker, 64 Mo.App. 521; Chaffee Bros. v. Powers Elevator Co., 33 N.D. 550, 157 N.W. 689. (6) Cause must be tried in the Court of Appeals upon the same theory adopted in the circuit court, and appellant will not be permitted to confess conversion in circuit court and then undertake to plead settlement to deny conversion in the appellate court. Daugherty v. Gangloff, 144 S.W. 434, 436, 239 Mo. 649; Donijanovic v. Hartman, 152 S.W. 424, 169 Mo.App. 709; Outcault Co. v. Schierbaum, 209 S.W. 985; Johnson v. Mason, 178 Mo.App. 8, 163 S.W. 260; Hagist v. Adams Co., 213 S.W. 510. (7) Where an objection is raised to plaintiff's instructions in the motion for a new trial, such point in said motion is not sufficient to preserve for review an alleged error in an instruction originally offered by plaintiff, but modified by the court. Peters v. K. C. Rwy., 224 S.W. 25, 204 Mo.App. 197; Scrivner v. Mo. P., 169 S.W. 85, 260 Mo. 421; Lebrecht v. Bank, 229 S.W. 288; Bridge Co. v. Brewing Co., 129 Mo. 343, 31 S.W. 767; Hemphill v. Morehouse, 142 S.W. 817, 162 Mo.App. 296. (8) A party to be bound by a waiver of his rights must receive some new consideration, and if the only consideration a party receives is that to which he is already entitled there is no consideration for the release. Storck v. Mesker, 55 Mo.App. 26; Lingenfelder v. Wainwright, 103 Mo. 578, 15 S.W. 844; Heck v. Watkin, 182 S.W. 315; In re Woods Sstate, 232 S.W. 674; Kick v. Merry, 23 Mo. 72; Jones v. Miller, 12 Mo. 408. (9) When there is a naked and undisputed sum due another, his naked agreement to accept a less sum in discharge of the whole will not be binding, for lack of consideration. 1 C. J., p. 539, sec. 40; Griffith v. Creighton, 61, Mo.App. 1; Miners Bank v. American Bonding Co., 186 S.W. 1139; Winter v. Cable, 73 Mo.App. 194; Wetmore v. Crouch, 150 Mo. 671, 51 S.W. 738; Brown Bkg. Co. v. Baker, 99 Mo.App. 660, 74 S.W. 454; Vinson v. Lumber Co., 151 S.W. 199, 167 Mo.App. 201; Chamberlain v. Smith, 85 S.W. 645, 110 Mo.App. 657; Hanson v. Crawford, 109 S.W. 98, 130 Mo.App. 232. (10) Respondent bank would not be bound by a release of its security by its Cashier or Vice-President, even if said Cashier or Vice-Present had undertaken to waive the rights of respondent bank araising out of the chattel mortgage given it by Collier. Secs. 11752 and 11762, R. S. 1919; Savings Bank v. Hughes, 62 Mo.App. 576, 579; Bank of Dexter v. Simmons, 204 S.W. 837; Bank of Mt. View v. McMinds, 235 S.W. 166; Peoples Bank v. Presnell, 236 S.W. 401; 3 R. C. L., p. 448, sec. 75, p. 442, sec. 69. (11) Unless appellant in its motion for a new trial complains in its motion for a new trial of a conflict in instructions, the matter cannot be reviewed in the appellate court. Johnson v. Brick Co., 205 S.W. 615, 276 Mo. 42; Matthews v. Coal Co., 177 S.W. 650, 653; Lane v. Railway, 35 Mo.App. 567; McQuillin's Instructions, p. 210, sec. 264. (12) Instructions must not change the issue as made by the pleadings, nor widen their scope. Sinnamon v. Moore, 142 S.W. 494, 161 Mo.App. 168; Scrivner v. Mo. P. Ry., 169 S.W. 83, 260 Mo. 421; Rawlings v. Frisco Ry., 175 S.W. 935 (not off. rep.); Moss v. Jacksonville Co., 226 S.W. 592. (13) Instruction must be within both the proof and the pleadings, and must not be broader than the proof, though the pleadings would justify broader instructions. Riley v. City of Independence, 167 S.W. 1022, 258 Mo. 671. (14) The judgment in favor of the respondent should be affirmed because for the right party. Sec. 1513, R. S. 1919; Maloney v. Bank, 232 S.W. 133; Brigham Co. v. Zollman Co., 220 S.W. 911.

COX, P. J. Farrington, J., and Bradley, J., concur.

OPINION

COX, P. J.

Action for conversion. Verdict and judgment for plaintiff and defendant has appealed.

Plaintiff is a bank doing business at Sikeston. Defendant is in the milling and warehouse business at Sikeston and other points. D. C. Collier, a farmer, was indebted to plaintiff on a demand note in the sum of $ 2275 and was indebted to defendant in the sum of $ 946.17. Plaintiff held a chattel mortgage on a crop of corn and some other property of Collier's to secure its debt while defendant had no security for its debt. When the corn was gathered, Collier stored it with defendant and received warehouse receipts therefor. He delivered these receipts to plaintiff with instructions to sell the corn at any time they thought the price the best and apply the proceeds on his note. The corn was held for sometime and on January 25 1921, plaintiff, desiring to realize on the corn, sent its agent to defendant with a view to secure a settlement and to collect the value of the corn. The warehouse receipts for the corn were left with the defendant and a day or so later, the defendant delivered to plaintiff two "settlement sheets" which showed the amount of the corn and its value and also the amount of Collier's indebtedness to defendant which was substracted from the value of the corn and checks were then made out for the balance and delivered to plaintiff with these "settlement sheets." Plaintiff looked these statements over and returned the checks to defendant with the statement that it held a chattel mortgage on the corn...