Engel v. Dressel

• Decision Date: 03 May 1887
• Citation: 26 Mo.App. 39
• Parties: HENRY ENGEL, Respondent, v. FRED. DRESSEL, Appellant; JOHN TIEDE, Interpleader.
• Court: Missouri Court of Appeals

26 Mo.App. 39

HENRY ENGEL, Respondent, v. FRED. DRESSEL, Appellant; JOHN TIEDE, Interpleader.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the Greene County Circuit Court, JAMES R. VAUGHAN Judge.

Affirmed.

BARNARD BOYD & DELANEY, for the appellant: The facts, as set out in the record, do not constitute a case of bailment. To charge one as bailee, he must have an exclusive possession. Story on Bailments, sects. 2 and 55; Nesbet v. Bank and Trust Co., 12 F. 686. Even if the evidence made out a case of bailment, the plaintiff having declared for money had and received, must be held to proof of actual delivery and actual conversion. 3 Greenl. on Evid. 117, and note; Kincheloe v. Priest, 5 West. Rep. 354; S. C. 89 Mo. 240; McCarthy v. Wolfe, 40 Mo. 520; Beardslee v. Richardson, 11 Wend. 25; Edwards on Bailments, sect. 106; Johnson v. Shader, 3 Mo. 359. If demand and refusal is relied upon to make out a case, a personal demand must be proved. Phelps v. Bostwick, 22 Barb. 314.

J. T. WHITE, for the respondent: To make out his case, prima facie, the plaintiff had only to show that he deposited his property with the defendant, demanded the same, and it was refused him. The burden was, then, rightly placed upon the defendant. Wiser v. Chesley, 53 Mo. 547; Huxley v. Hartzell, 44 Mo. 370; Battel v. Crawford, 59 Mo. 215.

OPINION

THOMPSON J.

The plaintiff brought this action to recover one hundred and ninety dollars, money had and received of the plaintiff by the defendant, etc. An auxiliary attachment was issued and levied upon land belonging to the defendant. The defendant failed to appear and plead, but John Tiede, another attaching creditor, appeared and defended under the statute. Rev. Stat., sect. 447. The statute provides that, " when the defendant has been notified by publication, and does not appear, any plaintiff, in the circumstances contemplated in this section, may make any defence to any previous attachment, or to the action, which the defendant might."

At the trial the plaintiff testified as follows: " I have known Fred. Dressel, the defendant, for several years. Knew him in Springfield. I worked at the woolen mills and boarded with him. I boarded with him about two weeks. I left there the last part of November, 1885. I had one hundred dollars in gold, and ninety dollars in paper. I counted the money out on his table, and put it in my trunk and locked it, and took the key. Dressel said it would be safer with him in the trunk than it would be in the bank. Nobody was present but Fred. Dressel and his wife. I then took my key and went to work at Mr. Fabel's, and went back occasionally, as I wanted clothes out of my trunk. I left the trunk there, because he said it would be safer with him than it would be in the bank. I left the house right after I put my money in my trunk. About two days afterwards I went back and got a shirt and a pair of pants. The trunk was all right. The money was there that time. About two days afterwards I went back again. The second time, I saw the trunk was broken open and the money was gone. Dressel, himself, and wife were there the first time I went back. The second time I went, the door was locked, and nobody was in the house. I did not get in at all that time. This was Saturday night. By the next day I got in with Mrs. Dressel. She had the key to the door; she opened the door. When we got in, there were several other trunks standing open, and my trunk was opened, too; I mean the hinges were loose, broken off. I hunted after my money and found it was gone. We then went out, and Mrs. Dressel locked the door. The woman kept the key. I never had the door key. I did not see Dressel that day; I never saw him again. Nobody had access to the room where my trunk was, but Dressel and his wife."

On cross-examination, the plaintiff also testified: " I had the woman arrested for stealing the money. I had her arrested, because her husband got the money and she knew about it, and had a twenty-dollar gold piece. I knew he had the money, because he was gone and the money was gone. I had her put in jail. I did not look in my trunk any more after I first looked in it and missed my money. I did not leave Dressel's for good, when I left it to go to Fabel's. I was going back to Springfield after I got through. I still called it my home. The trunk was not removed at all when I put the money in it. It remained in the same place. It was in the room I slept in. Mr. and Mrs. Dressel and myself all slept in one room when I was there. I kept the key to the trunk."

The evidence of Tiede, the interpleader, tended to show, that, at the time of the theft, the plaintiff accused Mrs. Dressel, and exonerated Dressel, saying that the latter was an honest man. The evidence tends to show that Dressel left Springfield at the time of the occurrence, detailed in the plaintiff's testimony, and that Mrs. Dressel, soon after, took a ticket for St. La. Two witnesses, for the defendant, testified, without objection, that the character of Dressel, for truth and honesty, was good.

Upon this evidence, the...