Dolfuss v. Cohen

• Decision Date: 08 May 1924
• Docket Number: No. 18350.,18350.
• Citation: 261 S.W. 754
• Parties: DOLFUSS v. COHEN.
• Court: Missouri Court of Appeals

261 S.W. 754

DOLFUSS v. COHEN.

No. 18350.

St. Louis Court of Appeals. Missouri.

May 8, 1924.

Rehearing Denied May 16, 1924.

Appeal from St. Louis Circuit Court ; Franklin Ferris, Judge.

"Not to be officially published."

Action by Charles H. Dolfuss, Jr., against Herman Cohen. Judgment for plaintiff, and, from order sustaining defendant's motion for new trial, plaintiff appeals. Affirmed and remanded.

Douglas W. Hobert, of St. Louis, for appellant.

Foristel & Eagleton and O. J. Mudd, all of St. Louis, for respondent.

DAUES, J.

This is an appeal from an order of the circuit court of the city of St. Louis, sustaining defendant's motion for a new trial. The action is one for damages for the breach of a replevin bond executed by Blooma Kahn, as principal, and the defendant in this cause, respondent here, Herman Cohen, as surety.

The petition is in usual form, and alleges, inter alia, that the bond, alleged to have been breached, contains the condition that if Blooma Kahn, the plaintiff in the replevin suit, shall prosecute her action with effect and without delay, and return the property to the defendant—

"if return thereof be adjudged, or in default of such delivery, shall pay the assessed value of said property and all damages for the taking and detention thereof, and pay all costs which may accrue in the action, then this obligation to be null and void; otherwise to remain in full force."

Breach of the bond is alleged, in that Blooma Kahn failed to return the automobile to the plaintiff in this suit, who was the defendant in the replevin action.

The defendant denied that Blooma Kahn obtained the automobile, and denied that the value of the same was $2,500, as alleged in the petition, and further alleged that the verdict and judgment in the replevin suit was to the effect that Kahn and her sureties should return to Dolfuss, the plaintiff herein, the automobile, or pay the value of defendant's interest in the property at his election, that the value of Dolfuss' interest in the automobile was an issue in the case, and that the judgment in the replevin suit was final.

The reply is a general denial.

Plaintiff offered in evidence the entire record made in the replevin suit, including the pleadings, affidavits, bond, order of delivery, etc. Plaintiff testified that the automobile had never been returned to him, and that the value of same at the time it was taken from his possession and at the time of the trial of the replevin suit was $2,500.

The defendant offered in evidence instructions for the plaintiff in the replevin suit, which offer was denied. At the close of plaintiff's evidence the defendant asked for an instruction in the nature of a demurrer to the evidence, which was denied.

At the request of plaintiff the court gave the following instruction No. 1:

"If you find and believe from the evidence that the automobile mentioned in the evidence has not been delivered to the plaintiff by the defendant since it was delivered to the defendant by the coroner, then your verdict must be for the plaintiff for the amount which you find from the evidence was the reasonable market value of said automobile at March 22, 1918."

And the court refused defendant's instruction No. 3, which is as follows:

"The court instructs the jury that, if your.verdict and finding under previous instructions be in favor of plaintiff and against defendant, such verdict and finding will be for the sum of $280, to which must be added interest computed at the rate of 6 per cent. per annum from March 22, 1918, until this date, and your finding should be in a lump sum for such sum above set out, with the interest added as above set out."

The jury returned the following verdict:

"We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined, and assess his damages at the sum of $2,500."

Judgment was duly entered upon same in faovr of the plaintiff for the penal sum of the bond, to wit, $3,600, to be satisfied upon execution for $2,500 and costs.

The defendant seasonably filed his motion in arrest of judgment and a motion for a new trial. The court, after taking the matter under advisement, sustained said motion for a new trial, giving as grounds that the court erred in refusing defendant's instruction No. 3, and erred in giving plaintiff's instruction No. 1. To this action and ruling of the court in so sustaining the motion for a new trial plaintiff excepted and has perfected this appeal.

We may briefly state the issues in the replevin suit as follows : The petition was in ordinary form, except that plaintiff got title to possession, arising out of plaintiff's relation to the chattel, a MacFarlan automobile, as "the mortgagee after condition broken." The petition, however, fails to give the date of the mortgage, or to name its maker or give the terms and names of the parties to the. debt secured by the mortgage, but the petition was deemed sufficient to allow proof to be made of plaintiff's mortgage and her right under same. The mortgage and the note which same secured were put in evidence and submitted to the jury. The petition prayed for possession of the automobile, and, in case the delivery of the property could not be had, then judgment is asked for Its value. The defendant in the replevin suit, plaintiff here, answered, first, with a general denial, and then specifically that the plaintiff was mortgagee of the automobile and entitled to the possession there, and prayed for the return of the machine, and in case of the failure of plaintiff to return the same that then defendant have judgment against plaintiff for $2,500, the value of the car. The replevin suit eventuated in a verdict, which is as follows:

"We, the jury in the above-entitled cause, do find the issues joined in favor of the defendants, and we find that at the time of the institution of this suit defendants were, and still are, entitled to the possession of the personal property described in the petition as follows: One 1917 model MacFarlan 3-cylinder 7-passenger touring car, painted blue with white stripes, factory No. 10163, with the usual equipments, and we find that plaintiff wrongfully detains the same, and we assess the value of defendant's interest in said property at the sum of $280."

The learned trial judge, in sustaining the motion for a new trial in the case now before us, filed a written memorandum, or opinion, which we think well to set out in full:

"Taking up the assignment of error in defendant's brief, I have reached the following conclusions :

"First. With regard to the otter in evidence of the instructions given by the court to the jury in the replevin suit:

"Doubtless, where several issues are presented in the pleadings in a case and it does not appear from the record which issues were passed upon by the jury, it is permitted in some cases to show by evidence extrinsic to the record proper just what issues were submitted to pass upon by the jury, and if such is the case here the instruction would perhaps be competent, although it would be a singular situation if the jury in one case is to determine the effect of instructions given in another case. However, in my opinion the record proper in the replevin suit presents no ambiguity as to the issues determined.

"The petition in that case presented two issues: First, the right of possession; second, the validity of plaintiff's mortgage.

"It is to be presumed that both of these issues were submitted to the jury, and it is apparent from the verdict that this was done.

"The action being possessory, the finding in favor of defendant did no more than establish his right of possession; such right of possession would not disestablish the mortgage.

"It is apparent from the verdict that the first issue was found for the defendant and that the second issue was found for plaintiff. Inasmuch as the jury found that the defendant was entitled to possession, it then became incumbent under the statutes and decisions for the jury to assess the value of the property. The jury assessed defendant's interest in the property at $280. The use of this phraseology could only mean that his interest was less than the whole; that the jury sustained the validity of the mortgage and assessed the value of the equity.

"The petition in the replevin suit alleges the value of the property to be $1,800, and the amount of the mortgage about $1,100.

"I think plaintiff in the instant case erroneously assumed that the jury found that defendant in the replevin suit had an unlimited ownership. Considering the phraseology of the en"" tire verdict, I think it is obvious that upon the face of the record the jury sustained the mortgage. But it is contended that the language of the statute is peremptory, and that, in every case where the possession is awarded to the defendant, the value of the property must be assessed, and that therefore so much of the verdict as finds the interest of the defendant is in violation of the...