O'Donniley v. Kinley
| Decision Date | 17 July 1926 |
| Citation | 286 S.W. 140,220 Mo.App. 284 |
| Parties | W. I. O'DONNILEY, PLAINTIFF IN ERROR, v. FLOYD KINLEY, DEFENDANT IN ERROR. |
| Court | Missouri Court of Appeals |
Error to Circuit Court of Pemiscot County.--Hon. Henry C. Riley Judge.
JUDGMENT ON MERITS AFFIRMED, BUT REVERSED AND REMANDED WITH DIRECTIONS TO RETAX COSTS.
Ward & Reeves for plaintiff in error.
(1) (a) We urge that the court committed reversible error in refusing the plaintiff's offered instructions and also in giving the defendant's instructions, and that the case was submitted to the jury upon an entirely erroneous theory of law. The evidence admits that the note for $ 150 which was secured by the chattel mortgage on the crops of corn and cotton was given for necessary mechandise and groceries furnished to and consumed by the defendant and his family. This mortgage was therefore certainly good to the extent of the value of the merchandise so furnished the defendant, and the testimony concedes that the plaintiff furnished the defendant much more than that for which the note was given. A minor's mortgage and note for necessaries is valid and binding on the minor and he cannot disavow or repudiate such a contract for necessaries. Walker v. Goodlett, 102 Ark. 383, 104 S.W. 189; Cooper v. State, 37 Ark 421; Askey v. Williams, 74 Tex. 294, 11 S.W. 1105, 5 L. R. A. 176. (b) There can be no question whatever but that the food, raiment and merchandise furnished the defendant and his family were necessaries, and the minor could not therefore repudiate the contract. Paul v. Smith, 41 Mo.App. 275. (c) The $ 150 note and mortgage represented necessaries agreed to be furnished to the defendant. Necessaries far exceeding this amount, the evidence admits were furnished defendant. The law is that notes given for necessaries or for money loaned which is expended for necessaries are binding obligations of a minor. 14 R. C. L. 227 & 259. (2) (a) We also assert in this case that the trial court committed error in refusing each of the plaintiff's instructions and in giving each of the instructions on behalf of the defendant, and that the cause was submitted to the jury on an erroneous theory, because the defendant at the time of the trial was over twenty-one years of age and he asserted and claimed title to his crops acquired under the rent contract, which contract also gave the plaintiff a lien on the crops for furnishings, loans and advances made to make the crop. In other words, the defendant could not, after reaching his majority, ratify a portion of his contract and at the time time disavow the other part of the same contract and retain the crops and benefits received by him under the contract. Section 2173, R. S. 1919; Zuck v. Harness & Carriage Co., 106 Mo.App. 566; 14 R. C. L. 226 & 247; 22 A. S. R. 306; 18 A. S. R. 659 & 703; 87 A. S. R. 326. (3) After the trial of this cause and before the motion for new trial was filed by plaintiff, the defendant filed a motion to re-tax the costs of the trial against the plaintiff. The court sustained this motion. This is one of the grounds of error set up in the plaintiff's motion for new trial. We understand the law to be that if the plaintiff in a replevin suit recovers any part of the property that then the plaintiff is entitled to recover all costs of the action. The court therefore committed error in this respect. Hecht v. Heimann, 81 Mo. App, 370; Lamm v. Railey, 127 Mo.App. 730.
Mayes & Gossom for defendant in error.
(1) In the trial of an action in replevin the taxing of the costs is in the discretion of the court and will not be interfered with by the court in the absence of an abuse of such discretion. The plaintiff in this case recovered only the property tendered him in the answer of the defendant, and therefore he should be taxed with the costs that accrued upon the trial of the case. Sec. 1697, R. S. 1919; Bank v. Rothwell, 182 S.W. 989; Redman v. Thomas, 39 Mo.App. 143; Cummings v. King, 266 S.W. 750. (2) Where an infant tenders or delivers all the property received by him under a contract which he has left he may repudiate such contract. Zuck v. Turner, 106 Mo. 566; Eagleberger v. Shelton, 272 S.W. 698. (3) The term "necessaries" used relative to infants are not such things as are described in plaintiff's petition or reply. Paul v. Smith, 41 Mo.App. 275; Rhodes v. Frazier's Estate, 204 S.W. 547. (4) An infant is not estopped by misrepresentations made during infancy. Gerkey v. Hampe, 274 S.W. 510. (5) Instructions are erroneous when they are not within the purview of the pleadings; therefore plaintiff's instruction No. 4 was properly refused. State ex rel. v. Morrison, 244 Mo. 193; State ex rel. v. Ellison, 195 S.W. 722; Parker v. Drake, 220 S.W. 1000. (6) In a suit on a note against an infant for necessaries the reasonable value of such necessaries must be shown. The amount of the note would not be presumed to be the value of such necessaries. The extent of recovery is confined to the reasonable value of the necessaries and not to the amount of the note. 14 R. C. L., sec. 33, p. 254; Swoboda v. Nowak, 255 S.W. 1083-4. In a suit on a note, where infancy is the defense, the replication must allege the note was given for necessaries and of what they consisted. Burr v. Wilson, 18 Tex. 367; Gibbs v. Light Co., 125 S.W. 840, 142 Mo.App. 19; 31 Corpus Juris, sec. 339 1/2, p. 1161.
This is a suit in replevin to recover certain personal property consisting of two mules, harness, wagon, farming tools and a crop of cotton and corn grown by defendant during the year 1924, on a farm which he had leased from plaintiff. Plaintiff's claim for possession is based on two chattel mortgages, one securing a note in the sum of two hundred and ten dollars ($ 210) and the other securing a note in the sum of one hundred and fifty dollars ($ 150). The answer admits the execution of the notes and mortgages and that plaintiff is the owner and entitled to the possession of the mules, wagon and harness described in plaintiff's petition, but claims that defendant is entitled to the possession of the cotton, corn and farm tools in said petition described. And for further defense the answer sets up that defendant is an infant under the age of twenty-one and is not bound by the terms or conditions of said notes and mortgages. The answer further purports to make tender to plaintiff of said mules, wagon, harness and some hay and corn, which, it is alleged, constitutes all the property defendant now has in his possession of the original property received from plaintiff.
Plaintiff in his reply alleges that defendant is a married man and head of a family; denies that defendant is under the age of twenty-one and charges that the money and property furnished to defendant by plaintiff covered by the notes and mortgages were necessary, and that defendant obtained the benefit therefrom by reason of which plaintiff is entitled to the property. The verdict of the jury was for plaintiff for the mules, wagon and harness described in plaintiff's petition and for defendant for the cotton, corn and farm tools.
Plaintiff brings the case here on writ of error from the judgment entered on said verdict. The evidence indicates that on the 24th day of January, 1924, defendant executed his note in the sum of two hundred and ten dollars ($ 210) secured by a Chattel mortgage dated February 1, 1924, on all the property in plaintiff's petition described. Later, on the 20th day of March, 1924, defendant executed another note in the sum of one hundred and fifty dollars ($ 150), on which is shown a credit of $ 61.50 secured by a chattel mortgage on only the corn and cotton crops, in said petition described. All the evidence as to the consideration for the one hundred and fifty dollar ($ 150) note is shown in the testimony of plaintiff and defendant respectively.
Defendant on cross-examination testified as follows:
Plaintiff testified as to the articles furnished him as follows:
No question arises in this case as to any property involved except the corn and cotton crops covered by both chattel mortgages. It is claimed that the evidence, heretofore set out on the part of defendant, is an admission that the consideration for the one hundred and fifty dollar ($ 150) note was for necessary merchandise and groceries furnished to and consumed by defendant and his family. If that evidence justifies such conclusion, then, on a proper showing of the value of such necessaries, we would have no hesitancy...
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