Dorroh v. Holland Bank

• Decision Date: 24 May 1928
• Docket Number: No. 4148.,4148.
• Parties: DORROH v. HOLLAND BANK et al.
• Court: Missouri Court of Appeals

7 S.W.2d 374

DORROH v. HOLLAND BANK et al.

No. 4148.

Springfield Court of Appeals. Missouri.

May 24, 1928.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Charles Dorroh against the Holland Bank and W. A. Oates. Judgment for defendants, and plaintiff appeals. Affirmed.

Ward & Reeves, of Caruthersville, for appellant.

BAILEY, J.

This is an action in damages for conversion of personal property claimed by plaintiff under a recorded chattel mortgage. Judgment was for defendants, and plaintiff has appealed.

Plaintiff offered evidence tending to prove that he was engaged in the hardware business at Caruthersville, and on June 4, 1923, sold two Hummer cultivators to one T. M. Turner, taking his note therefor, secured by a chattel mortgage on the cultivators. The price was $40 each. The cultivators were what is termed "walking cultivators." He testified that thereafter he learned that Turner had gotten rid of the cultivators; that he had a conversation with defendant Oates, in which Oates admitted that he had gotten the cultivators. This was denied by Oates, who testified that one of the cultivators he had taken from Turner was a "riding cultivator," and that neither of the cultivators had a name thereon, but appeared to be several summers old. Turner was in debt to the defendant Holland Bank, and the property seems to have been taken by defendant Oates, representing the bank, to sell and apply the proceeds to the bank indebtedness. That fact, however, is immaterial. The sole issue was whether or not the property taken by Oates was the whole or any part of the property covered by the mortgage.

On behalf of defendant, the court gave the following instruction:

"No. 1. The court instructs the jury that, before you can find for the plaintiff in this case you must find from the greater weight or preponderance of the evidence that the Holland Bank and W. A. Oates, or either of them, unlawfully and without right took and converted to their own use or sold two Gummer cultivators, and, unless you so find, your verdict must be for the defendant." (Italics ours.)

Plaintiff also was given an instruction submitting the case on the theory that, if defendants took possession of, and sold, "the two cultivators mentioned in the mortgage and testimony, or either of them," then plaintiff was entitled to recover the reasonable market value of the two cultivators "or either of them."

It is contended by plaintiff that defendant's instruction is erroneous, because it did not permit plaintiff to recover, unless defendants converted both cultivators. There was evidence, as heretofore indicated, that one of the cultivators taken and sold by defendants was a "riding cultivator," and the other a "walking cultivator." Plaintiff therefore urges that the jury might, under the evidence, have found for plaintiff for the conversion one of these cultivators, yet, under instruction No. 1, they were not permitted to do so.

It is a cardinal rule of practice on appeal that the giving of an erroneous instruction is not ground for reversal, where it is manifest, from the undisputed facts in the case, that it could not have prejudiced the party appealing. Johnson v. Railroad, 173 Mo. 307, 73 S. W. 173; Schultz v. Schultz (Mo. Sup.) 293 S. W. 105; Section 1513, R. S. Mo. 1919.

We think this rule...