Dusky v. Rudder

• Decision Date: 31 October 1883
• Citation: 80 Mo. 400
• Parties: DUSKY, Appellant, v. RUDDER.
• Court: Missouri Supreme Court

80 Mo. 400

DUSKY, Appellant,

v.RUDDER.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Linn Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

This was an action instituted before ajustice of the peace for the conversion of twelve sheep and their increase, and also for the conversion of twelve fleeces of wool. The trial in the circuit court resulted in a verdict and judgment for the defendant.

The evidence, on the part of the plaintiff, tended to show that about January 10th, 1880, A. V. Dusky took away from plaintiff's farm, where prior thereto they were keeping their sheep together, fifty-five sheep, of which number plaintiff claimed twelve to be his property; that plaintiff was absent from home at the time, but that his son objected to A. V. Dusky taking more than thirty-six sheep having the latter's mark thereon, without plaintiff's consent; that within two or three days after the sheep were taken, plaintiff went to see A. V. Dusky, and found that the marks on the most of the sheep had been changed; that prior to this, on September 24th, 1879, A. V. Dusky had executed a chattel mortgage to one Barnes on 150 sheep, to secure the payment of a note for $250; that Barnes was informed by plaintiff, at the time of the execution of the mortgage, that A. V. Dusky did not own the third of 150 sheep. The evidence of plaintiff further tended to show that the note and mortgage were placed by Barnes in the hands of defendant, the former having removed from the State; that on or about April 1st, 1880, on Sunday, plaintiff told Rudder, the defendant, that twelve of the sheep that A. V. Dusky took and their increase, belonged to him, plaintiff; that defendant refused to recognize said notice, because given on Sunday, and thereupon, on the following day plaintiff sent him a written notice of his claim to the sheep in controversy. Plaintiff's evidence further went to show that A. V. Dusky contracted to sell the fleeces of wool taken from the sheep in question to a purchaser at Chillicothe, Missouri, and that defendant, after receiving the above notices, hauled and delivered the wool there and received the money for it; that about July 1st, 1880, A. V. Dusky contracted to sell fifty odd sheep and thirty-five lambs (including the sheep in question) to one Watterson, at the price of $125, the latter testifying that he bought the sheep of A. V. Dusky, but paid defendant $52.10, he so paying that sum to defendant to have the Barnes mortgage released; that he, Watterson, bought all the sheep that were at defendant's. Plaintiff's evidence also went to show that these sheep so bought by Watterson, were put into defendant's possession at the instance of A. V. Dusky and one Stanley; that defendant offered to sell the latter forty-four of the sheep, and to take the risk arising from the ownership of some of the sheep being in dispute; that after defendant so obtained possession of the sheep he refused permission to plaintiff's son to go into the pasture to see the sheep, and notified plaintiff that there was only one way by which he could get the sheep, and that was by law. With respect to the money received by defendant for the wool and sheep claimed by plaintiff, the latter's evidence was, that defendant said he had the money and that plaintiff could not get it; the defendant himself testified that he told plaintiff that he, defendant, had $91.50, that he got it from one Stodard, and was going to keep it until this matter was settled.

Defendant's evidence tended to show statements of plaintiff to one Darling that none of the sheep taken by A. V. Dusky belonged to plaintiff; that A. V. Dusky sold the wool at Chillicothe, and that he requested defendant to haul it there for him, which the latter did; that defendant there received the remainder of the purchase money due on it, brought it back, and at A. V. Dusky's request, he sent it to Barnes to apply on the mortgage debt; that he, defendant, did not know anything about the ownership of the wool; that the sheep were not in his possession until long after the above; that all defendant's connection with the sale of the sheep was that A. V. Dusky and one Stanley came with them to defendant's and asked permission to turn them into the latter's field, which was granted; that A. V. Dusky then sold all the sheep to Watterson for $125, the defendant only requiring that Watterson should pay the remainder due on the Barnes mortgage, $52.10, before he would release it; that it was admitted that all the sheep were included in the mortgage, except from six to twelve; that the number admitted to be included in the mortgage was sufficient to pay the residue due on the mortgage twice over; that defendant simply got this balance for Barnes and not for his own benefit. Defendant's evidence also tended to thow that A. V. Dusky did not take away from plaintiff's any sheep except those having the former's mark; that he so took away fifty-one head.

Plaintiff asked the court to instruct the jury as follows:

1. If the jury believe from the evidence that on or about the 10th day of January, 1880, one A. V. Dusky, without the consent of the plaintiff, took and drove away from the plaintiff's farm and premises the sheep, or some number of them, claimed by him in his complaint in this case, and that afterward said sheep were taken to the farm of the defendant by said A. V. Dusky, and that he sold said sheep to one Gabriel Watterson without plaintiff's consent, and that of the money paid by said Watterson for said sheep the defendant received the sum of $52.10, and that prior to the said sale of said sheep defendant had actual notice that plaintiff claimed to own a part of said sheep; and that the plaintiff was the owner of twelve or some other number of said sheep, then the jury should find their verdict for the plaintiff on the first count of the complaint, and assess his damages on said count at the value of plaintiff's sheep so sold.

2. The court further instructs the jury that if they believe from the evidence that the plaintiff was the owner of twelve, or some less number of sheep, which one A. V. Dusky had taken from plaintiff's farm and premises without his consent, on or about the 10th of January, 1880, and that said A. V. Dusky sold the fleeces taken off of plaintiff's said sheep, and that the defendant delivered said fleeces to the purchaser thereof, and received the payment therefor, and by an arrangement between said A. V. Dusky and defendant, he, said defendant, retained said money, and has not paid the same to plaintiff, and that defendant knew that plaintiff claimed to be the owner of the sheep, off of which said fleeces were taken, and also claimed the money derived from the sale thereof, then the jury should find for the plaintiff on the second count of the complaint, and assess his damages on said count at the value of said fleeces.

3. If the jury believe from the evidence that the sheep or any of them claimed by plaintiff in his complaint in this case, were the property of the plaintiff, and that while the plaintiff was such owner A. V. Dusky executed to one Barnes a mortgage upon the same, and that said A. V. Dusky, without plaintiff's consent, took and carried away said sheep from plaintiff's farm, and that afterward said A. V. Dusky sold said sheep to one Watterson, without plaintiff's consent, and that defendant being fully notified of plaintiff's claim of ownership to said sheep, and acting as agent for said Barnes for the collection of the debt mentioned in said mortgage and holding said mortgage, received from said Watterson the sum of $52.10 on the payment for said sheep, and that defendant has refused to pay plaintiff anything for or on...