Duncan v. Gage

Decision Date30 April 1923
Docket NumberNo. 14656.,14656.
PartiesDUNCAN v. GAGE.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Gentry County; John W. Dawson, Judge.

"Not to be officially published."

Action by R. P. Duncan against John Gage. Judgment for defendant, and plaintiff appeals. Affirmed.

McCaffrey & Cook, of Maryville, for appellant.

E. C. Lockwood, of Stanberry, for respondent.

TRIMBLE, P.

This case originated in a justice court, and went on appeal to the circuit court, where an amended petition was filed. It alleges that on the 12th day of November, 1921, plaintiff was the owner of certain household goods of the value of $111.50; that said property was formerly the property of one W. H. Richardson, and plaintiff became the owner thereof in that plaintiff, having a judgment against W. H. Richardson, made a "settlement and adjustment" with said Richardson through his "duly appointed trustee"; that said household goods were sold at public auction to the highest bidder for cash, and defendant bought them for $111.50, and took possession of said goods, but failed to pay for them; wherefore judgment was prayed for said amount with costs. The court, at the conclusion of plaintiff's evidence, directed the jury to find for defendant, and plaintiff has appealed.

It appears that plaintiff had a judgment, obtained before a justice of the peace, against W. H. Richardson. Upon reading an advertisement of a sale at public auction of a piano and some household goods by Ray L. Richardson, a son of W. H. Richardson, who had left the state, plaintiff, suspecting that the goods belonged to W. H. Richardson, caused an execution to be issued on his judgment and placed in the hands of the constable. This execution, however, was never levied upon the goods. Instead of doing this, plaintiff went to the son and obtained from him a note to the clerk of the sale saying to him:

"You are authorized to turn over all money taken from this sale to J. A. Stirewalt, except piano and stool and Musick Cabinet."

Stirewalt was the constable.

However, there was no evidence of any authority in the son to thus dispose of the property or its proceeds. There is no evidence whatever that plaintiff ever in any way got any title to or claim upon any of said goods, and yet his petition proceeds upon the theory that he is the owner thereof, and entitled to the proceeds. It is elementary that the evidence must conform to the pleading. Deickman v. McCormick, 24 Mo. 590. There was...

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12 cases
  • Ross v. Pendergast
    • United States
    • Missouri Supreme Court
    • September 5, 1944
    ... ... 577, 56 S.W. 316; Brand v. Herdt, ... 45 S.W.2d 878, 880. (2) Instruction D was properly given ... Phillips v. Scholl, 21 Mo.App. 38; Duncan v ... Gage, 250 S.W. 647; Jungeman v. Brewing Co., 38 ... Mo.App. 458; Guthrie v. Holmes, 272 Mo. 215, 198 ... S.W. 854; Loehr v. Starke, 332 Mo ... ...
  • Gordon v. Raymond
    • United States
    • Kansas Court of Appeals
    • March 5, 1945
    ... ... 67 l. c. 72; ... Thompson v. McCune, 333 Mo. 758, 63 S.W.2d 41 l. c ... 43; Hess v. Hessel, 102 S.W.2d 729 l. c. 730; ... Duvall v. Duncan, 341 Mo. 1129, 111 S.W.2d 89, l. c ... 92. (3) The court erred in permitting plaintiffs' ... witness, C. A. Tate, to testify to a claimed habit of ... 46; S. S. Allen Grocery Co ... v. Buchanan County Bank, 182 S.W. 777; Section 3032, ... Revised Statutes of Missouri, 1939; Duncan v. Gage (Mo ... App.), 250 S.W. 647 l. c. 648. (3) There was no ... prejudicial error in admitting the testimony of C. A. Tate as ... to the custom of ... ...
  • Robertson v. Vandalia Trust Co.
    • United States
    • Missouri Court of Appeals
    • January 3, 1934
    ... ... Co., 138 Mo.App. 238; Collins v. Hutchings, 194 ... S.W. 733; Nave v. Diekman, 208 S.W. 273; Sevier ... v. Harmon, 261 S.W. 348; Duncan v. Gage, 250 ... S.W. 647; Jennings v. Cherry, 257 S.W. 438; ... Grafeman Dairy Co. v. Northwestern Bank, 288 S.W ... 359; Hecker v ... ...
  • Robertson v. Vandalia Trust Co.
    • United States
    • Missouri Court of Appeals
    • January 3, 1934
    ...Pullman Co., 138 Mo. App. 238; Collins v. Hutchings, 194 S.W. 733; Nave v. Diekman, 208 S.W. 273; Sevier v. Harmon, 261 S.W. 348; Duncan v. Gage, 250 S.W. 647; Jennings v. Cherry, 257 S.W. 438; Grafeman Dairy Co. v. Northwestern Bank, 288 S.W. 359; Hecker v. Bleish, 3 S.W. (2d) 1008; Gary v......
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