Dougherty v. Chapman

• Decision Date: 06 February 1888
• Citation: 29 Mo.App. 233
• Parties: THOMAS DOUGHERTY, Respondent, v. GEORGE CHAPMAN, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 233

THOMAS DOUGHERTY, Respondent, v. GEORGE CHAPMAN, Appellant.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Chariton Circuit Court, HON. G. D. BURGESS, Judge.

Reversed and remanded, with directions.

Statement of case by the court.

This case, which was begun June 2, 1883, was tried on the third count of the petition, the other counts having been dismissed. The third count of the petition was as follows " Plaintiff further states that defendant owes him the sum of three hundred dollars for cash received by defendant on the sale of a jack, which was the property of plaintiff which said jack was sold, and the proceeds derived therefrom received by defendant and appropriated to his own use and benefit; for which plaintiff asks judgment, together with six per cent. interest thereon from August, 1881, the date of said sale, until paid."

The answer was a general denial.

At the trial, plaintiff offered evidence tending to show that, in 1879, he (plaintiff), as administrator of the estate of one Robt. White, deceased, sold the jack in controversy at public auction, and, by a previous arrangement, bid him in for defendant, Chapman; that the sale was for cash, and the defendant, having no money, refused to take the jack as his own, but agreed to let Dougherty have the jack at his bid and that he (Chapman) would then take the jack down to his farm, and, after paying expenses, that he and Dougherty would divide profits arising from the animal's services; that plaintiff consented to this arrangement, and that defendant took the jack accordingly, and afterwards sold it. Plaintiff also offered evidence, against defendant's objection, for the purpose of showing the value of the jack. At the close of plaintiff's case, defendant interposed a demurrer to the evidence, which was refused.

The defendant, in substance, testified that he authorized the plaintiff to purchase the jack for him at the administrator's sale, and that he was notified of the purchase by plaintiff for sixty-five dollars. As to what then occurred, the defendant testified as follows: " I told him (plaintiff) the jack was cheap enough at that. He was owing me a large sum of money at that time. I told him I would give him credit on his account for the sixty-five dollars bid for the jack, and he replied that it was all right. He wanted me to send and get the jack that night, but I waited until next morning, and then sent and got the jack from Mrs. White's stable, in Keytesville, and sent him down to my farm. I gave Dougherty credit on his account for the sixty-five dollars, as agreed." The defendant also testified that he sold the jack, in 1881, to a man in Linn county for two hundred dollars.

For the plaintiff the court gave the following instructions:

" 1. If the jury believe, from the evidence, that, in the year 1879, Thomas Dougherty, as administrator of the estate of Robert White, deceased, sold at public sale, as the property of said estate, the jack in question in this case and that, by an agreement between plaintiff and defendant, said jack at said sale was bid off for, and in the name of, defendant, and that, subsequently, by a further agreement between plaintiff and defendant, the plaintiff was to pay the purchase price for said jack at said sale, and the same was to become plaintiff's property; and that plaintiff did account to said estate for said bid at said sale, and that, thereafter, in the year 1881, while said jack was the property of plaintiff, the defendant sold said jack without plaintiff's consent or authority, then the jury should find for plaintiff the value of the jack at the time when sold by defendant, with interest on such sum at the rate of six per cent. per annum from that date."

" 3. Even if the jury should believe, from the evidence, that plaintiff was indebted to defendant at the time the jack was sold at administrator's sale, and thereafter, and that defendant credited plaintiff's account with the amount at which the jack was sold at said sale, yet the jury cannot find for the defendant on that ground, unless the jury further find, from the evidence, that plaintiff was indebted to defendant at the time, and authorized such credit to be made."

Of its own motion the court gave the following instructions:

" 1. Unless the jury believe, from the evidence, that plaintiff had the jack sued for bid in for defendant at the administrator's sale, and that defendant refused to take him, and that thereafter he and plaintiff entered into an agreement, by the terms of which agreement defendant was to keep the jack as plaintiff's property, and that he afterwards sold and converted him to his own use, they will find for defendant."

" 2. If the jury find, from the evidence, that, by an agreement between plaintiff and defendant, plaintiff had the jack bid in for defendant at the administrator's sale, and afterwards delivered him to defendant, and that, by an agreement between them, the amount of the bid for the jack was credited upon an account which defendant then held against the plaintiff, they will find for defendant."

The case was tried on the fifth day of January, 1887, and the jury, under the instructions and evidence, returned a verdict in favor of the plaintiff in the sum of $261.16 2/3. On the seventh day of January, a motion for new trial was filed, which having been overruled, the defendant appealed to this court.

CRAWLEY & SON, for the appellant.

I. The action was for cash received by defendant to plaintiff's use. Evidence as to value was immaterial and should have been excluded. 2 Greenl. Evid. (13 Ed.) secs. 98, 117; Bliss on Code Pleading, sec. 13.

II. The demurrer to plaintiff's evidence should have been sustained. (a ) According to plaintiff's testimony defendant refused to accept the jack under his bid, or comply with the conditions of the public sale, which was for cash. This left the ownership, the property, in the administrator, as administrator. Dannefelser v. Weigle, 27 Mo. 45. After refusing to receive the property, upon the terms of the public sale, defendant had nothing to transfer. His agreement to let plaintiff have the animal was no more than giving his consent to a devastavit. (b ) Plaintiff's own evidence further negatives his right to recover by affirmatively showing a wrongful speculation with the property of the estate, and defendant's knowledge of the character in which it was held. Plaintiff's judgment, therefore, in this action, would afford defendant no bar against a second recovery upon the same demand at the suit of the proper parties. Bigelow on Fraud, 257 and note, 380, 381; 1 Perry on Trusts (2 Ed.) sec. 225; Dicey on Parties (Truman's Ed.) top p. 439, side p. 421; McLaurine v. Monroe, 30 Mo. 462; Renshaw v. Wills, 38 Mo. 201; Dusky v. Rudder, 80 Mo. 401; State ex rel. v. Berning, 74 Mo. 87; Cowgill v. Linville, 20 Mo.App. 138; Landis v. Saxton, 89 Mo. 375.

III. All three instructions asked on part of plaintiff should have been refused. (a ) Plaintiff's first instruction presents an issue outside of the pleadings. In case of wrongful conversion of personal property the injured party has his election to sue in trover for the value, or waive the tort and sue for money had and received to his use. The petition here is an express waiver of the tort and ratification of the sale. Where the proceeds are demanded the question of value is immaterial and should not be submitted to the jury. Bliss on Code Pleading, sec. 13; 2 Greenl. Evid. (13 Ed.) p. 98, sec. 117; Cooley on Torts, 92. And interest could only be recovered after demand made for the money. Of such demand there was no proof. (b ) Plaintiff's second instruction was misleading and unwarranted by the evidence. His own testimony establishes title in the estate, and not in himself, and defendant's knowledge thereof. The doctrine that a bailee may not set up the jus tertii against his bailor, has no application; first, because Dougherty, as administrator, was the real bailor, as shown by himself; and, second, because a party is never estopped to assert the legal effect of the pleadings or evidence of his adversary. State ex rel. v. Berning, 74 Mo. 87; Estes v. Long, 71 Mo. 605. The fact that Dougherty, years afterward, accounted to the estate for sixty-five dollars, the amount of defendant's bid, does not alter the case. Such an accounting, to operate as a transfer of the property from the estate to the administrator, must have been made under such circumstances as to protect defendant from a second recovery founded on the same demand. Lyons v. Doherty, 50 Mo. 38. ( c ) Plaintiff's third instruction is partially unintelligible and wholly wrong. The proposition is too obvious to justify citation of authority, that if the animal in controversy was delivered to defendant as defendant's property, plaintiff cannot recover in this action, whether the property has ever been paid for, or credit given on the account, or not.

IV. Both instructions given by the court, of its own motion, were erroneous. (a ) The first presents as a fact essential to plaintiff's recovery, the very fact which, if found by the jury, should have defeated his recovery, viz., " that defendant refused to take the jack under his bid." Such refusal left the property in the estate. (b ) Delivery of the property to defendant under his bid as his own property was a complete defence to this action. The second instruction, given on the court's own motion, requires, in addition, that the jury find an agreement to credit, as well as an actual credit, on the account. This was error.

A. W. MULLINS, for the respondent.

I. There are two material and controlling questions presented by the record in this case: (1) The title to the jack and whether or not the...