Collins v. John Pfingsten Leather Co.
| Decision Date | 30 December 1916 |
| Parties | W. D. COLLINS et al., Appellants v. JOHN PFINGSTEN LEATHER COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillan Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Frank H. Sullivan and Charles E. Morrow for appellants.
(1) Counterclaims connected with the subject of the action are permissible in replevin suits. McCormick Harvester Co. v Hill, 104 Mo.App. 544; Ely v. Sutton, 177 Mo.App. 546, 556. (2) Damages arising in connection with the subject-matter may be set off in a replevin suit against the debt claimed by the defendant as a lien upon the property replevined. Close v. Hurst, 151 Mo.App. 75. (3) If the plaintiffs had advanced money to the defendant, or there was due the plaintiffs interest on moneys so advanced, and for investments in hides under the contract in question which equalled or exceeded the amount of the indebtedness claimed by the defendant, then the plaintiffs were not indebted to the defendant at the time of the institution of this suit, and defendant had no lien upon the hides in question, and the court erred in excluding plaintiffs' evidence to so show. Close v. Hurst, 151 Mo.App. 75, 79. (4) The court erred in refusing to permit the plaintiffs to show that the defendant had damaged and retained and converted to its own use other hides received by it to be tanned under the contract in question, and that the plaintiffs were damaged thereby in a sum greater than the amount claimed by the defendant. Close v. Hurst, 151 Mo.App. 75; Crane v. Murray, 106 Mo.App. 697; Gordon v. Bruner, 49 Mo. 570; Mathes v. Lumber Company, 173 Mo.App. 239. (5) The defendant in no event had a lien upon the hides in question in this suit for services rendered in tanning other hides unless there was a custom or a special agreement to the contrary, and no such custom or agreement was shown in this case. Therefore, the claim of $ 1666.68 made by the defendant upon the plaintiffs before the hides in question could be delivered to the plaintiffs, when under the contract it is admitted that the defendant is only entitled to $ 999.26, was excessive under any view, and the defendant thereby lost its lien. Kirtley v. Morris, 43 Mo.App. 144, 151. (a) In any event, if the demand for $ 1666.68, made by the defendant, was not made in good faith, and amounted to an announcement that it was useless for the plaintiff to tender a smaller sum, it dispensed with any tender and was a waiver of the lien, and the court erred in refusing the plaintiffs' instruction No. 1. 25 Cyc. 677. (b) Admittedly the defendant joined a non-lien demand, if it had any demand against the plaintiffs, with its alleged lien demand of $ 999.26 for tanning the particular hides in question, and thereby it lost its lien. 25 Cyc. 677; Bicknell v. Trickey, 34 Me. 273. (c) The defendant, in this case, if it had a demand in excess of $ 999.26, the largest amount to which it was entitled for tanning the hides in question, mingled its accounts and demanded of the plaintiff the sum of $ 1666.68, before the leather would be delivered to the plaintiffs, and thereby lost its lien. Kirtley v. Norris, 43 Mo.App. 144, 151. (6) The court erred in permitting the defendant to introduce the testimony of the witness Walter, that the tanning of the hides in question cost it six cents per square foot. The defendant had agreed to tan the leather in question for a certain price, and it was not only immaterial but prejudicial error to permit the defendant to show that the tanning of the hides in question actually cost it more than the contract price. The court also erred in refusing plaintiffs' refused instruction No. 5, which stated to the jury that if they believed from the evidence that the defendant had agreed to treat and tan the leather in question in a good and workmanlike manner, and render the same into salable leather for four cents per foot for side leather, and one and one-half cents per foot for split leather, then it was the duty of the defendant to so tan said hides, regardless of the cost to defendant.
Arthur N. Sager and Chas. T. Abeles for respondent.
(1) Replevin is in form an action ex delicto for the specific reparation of a tort. It is no justification for a tortious act that the tort-feasee is indebted to the tortfeasor. Waterman on Set-off (2 Ed.), sec. 144, p. 169. (2) If a claim does not arise out of the contract or cause of action set forth in the petition as the basis of the plaintiff's claim, or is not connected with the subject matter, it cannot be used as a set-off in a replevin suit. The plaintiffs' offers of evidence of advances made to the defendant, and of all claims arising in connection with other shipments of hides, were properly refused in the absence of proof that the advances were made in payment of work done on the hides in question, and that the shipments were all made in pursuance of a single contract. McCormick Harvesting Co. v. Hill, 104 Mo.App. 546, 558. (3) The right of set-off is a purely statutory one and its exercise is dependent upon the mutuality of the debts attempted to be set-off. A demand of damages for a tort is not a debt and is not embraced in the statute of set-off. Hence, the plaintiffs' offer of evidence to prove that the defendant had damaged and retained and converted to its own use other hides received by it, was properly refused. State to use, v. Modrell, 15 Mo. 421; Caldwell v. Ryan, 210 Mo. 17, 25. (4) A general claim cannot be set-off against a special one which is fundamentally a property right. Haseltine v. Thrasher, 65 Mo.App. 334, 342. (5) The claim by a lien holder of a sum in excess of that due him, does not of itself waive the lien. Monteith v. Great Western Printing Co., 16 Mo.App. 450,453; Kirtley v. Morris, 43 Mo.App. 144, 151; 25 Cyc. 677. (a) There should be no distinction between the legal consequences of an excessive claim and the joining of a lien and a non-lien demand. Consequently, in whichever light the defendant's action is viewed, the lien is not lost. Scarfe v. Morgan, 4 Mee & W. 270. (b) The defendant's accounts were not so mingled as to make it impossible to distinguish the claim against the property in question. Kirtley v. Morris, 43 Mo.App. 144, l. c. 151 (6) Even though the evidence tending to show that the tanning of the hides in question actually cost the defendant more than the contract price was immaterial, the admission of this evidence was in no way prejudicial to the plaintiff, for the court charged the jury (Instruction No. 3, given by the court of its own motion) that the law required the defendant to tan the hides in the manner and for the prices specified by the agreement. The material points of the plaintiffs' refused instruction No. 5, which stated to the jury that if they believed from the evidence that the defendant had agreed to treat and tan the leather in question in a good and workmanlike manner and render the same into salable leather for four cents per foot for side leather, and one and one-half cents per foot for split leather, then it was the duty of the defendant to so tan said hides, regardless of the cost to the defendant, were incorporated in the third instruction given by the court of its own motion, and this refusal was not, therefore, reversible error.
This is a suit in replevin for one hundred and forty-two bales of leather. The petition was filed in the circuit court, city of St. Louis, on the 7th day of February, 1913, and is in the usual form, accompanied by an affidavit that the property was wrongfully detained and that its actual value was $ 4000, and that the plaintiffs would be in danger of losing said property unless it be taken from the possession of the defendant or otherwise secured. The order of delivery was duly made by the court and thereafter the plaintiffs gave the sheriff a bond in the sum of $ 8000, and the sheriff thereupon took the property and delivered it to plaintiffs.
The suit was originally against John Pfingsten Leather Company, Chicago & Alton Railroad Company and Columbia Transfer Company, but the Railroad Company and the Transfer Company simply had all the leather in question as carriers, and by stipulation of all of the parties the cause was dismissed as to those two defendants. The real issues were raised by the answer of the defendant, John Pfingsten Leather Company and the reply of the plaintiffs thereto.
The answer of the defendant, John Pfingsten Leather Company alleged that it was a corporation and that the plaintiffs were co-partners and alleged that on or about the 15th day of August, 1912, it entered into a verbal contract with the plaintiffs to treat and tan at its tannery in Milwaukee, Wisconsin, certain hides to be furnished by plaintiffs at a price of four cents per square foot, and that pursuant to that contract plaintiffs furnished and delivered to the defendant certain hides which were treated and tanned by it and converted into leather, and that after this was done and they were finished and ready for shipment, the leather was bundled into convenient form for shipment, and aggregated one hundred and forty-two bundles and contained about twenty-four thousand nine hundred eighty-one and one-half square feet of leather; that, on or about the 29th day of January, 1913, these bundles of leather were delivered to the Goodrich Transit Company, a common carrier, consigned and billed to the order of itself at St. Louis, Missouri, notify the plaintiffs, and that when the said leather so billed arrived in St. Louis and was in possession of the Chicago & Alton Railroad Company it was seized by the sheriff under writ of...
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