Fergusson v. Comfort
| Decision Date | 04 April 1916 |
| Citation | 184 S.W. 1192,194 Mo.App. 423 |
| Parties | ELLA M. FERGUSSON, Appellant, v. CHARLES D. COMFORT et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis City Circuit Court.--Hon. George C Hitchcock, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Zachritz & Zachritz and Harmon J. Bliss for appellant.
(1) The value of the chattels in question was wrongfully assessed as of the time of caption. In an action of replevin where the finding is against the party in possession of the property the value of the property should be assessed against him, and such assessments must be the value found by the jury to exist at the date of trial, and not the value which the property may have had at the time of caption, or at the institution of the suit. White v. Storms, 21 Mo.App. 288; Ascher v. Schaeper, 25 Mo.App. 1; Hoester v Teppe, 27 Mo.App. 207; Hickey v. Koch, 42 Mo.App. 230; Kendall Boot & Shoe Co. v. Bain, 46 Mo.App. 581; Standard Oil Co. v. Meyer Bros. Drug Co., 84 Mo.App. 76; Chapman v. Kerr, 80 Mo. 158; Mix v. Kepner, 81 Mo. 93; Richey v. Burns, 83 Mo. 362. So also it was the right of plaintiff to show by competent evidence any fact throwing light upon the actual value of the property at the time of the trial, and it was reversible error to exclude evidence showing that the plaintiff based her averment of value upon the purchase price, and that such purchase price could not be realized upon the property, and was not the true value thereof. (2) The rule of law that the assessment of value of the property must be as of the date of trial and not of the caption is not changed by the fact that the plaintiff in the replevin has by an averment of her petition assigned a particular value to the property, nor is such plaintiff conclusively bound by such averment for the following reasons: 1st. Because the allegation of value is not a necessary nor material averment of the petition, but it is sufficient if it appear in the affidavit which is not traversable. R. S. 1909, sec. 1830; Bosse v. Thomas, 3 Mo.App. 472, 478; Schaffer v. Faldwesch, 16 Mo. 337; Wood v. Steamboat Fleetwood, 19 Mo. 530; Martin v. Block, 24 Mo.App. 60; Field v. Barr, 27 Mo. 416. 2nd. Because the allegation of value must necessarily be of the date of the affidavit, and not of the time of trial. 3rd. Because the allegation of value either in the petition or in the affidavit is not a voluntary statement of the pleader, but is made in formal conformity to a requirement of the statute. R. S. 1909, sec. 2637. 4th. Because the averment of value is a mere expression of opinion, and may be made without adequate knowledge and does not necessarily show the true value which may be proved by competent testimony either of experts or of persons having knowledge and familiarity with the property in question, and its value. (3) To arrive at the true value of the interest of the plaintiff in the replevin, in the property at the time of trial, it is competent to show that such interest is subject to the lien of a mortgage, and to show the amount of that mortgage, and it was reversible error to exclude evidence tending to show such facts. It was improper and unjust to assess against plaintiff the full value of the property unaffected by what she owed the mortgagee, Vette, and had conveyed the property to secure. Dodd v. Wilson, 26 Mo.App. 462; Dixon v. Atkinson, 86 Mo.App. 24; Stroud v. Morton, 70 Mo.App. 647. (4) Our replevin statute must receive a liberal interpretation, and it has been held to possess sufficient flexibility to adjust all equities arising in the action of replevin between all persons in interest. Dilworth v. McKelvy, 30 Mo. 149; Dougherty v. Cooper, 77 Mo. 535; Lewis v. Mason, 94 Mo. 558; Powers v. Bradley, 41 Mo.App. 556. (5) The defendant Nolte, sheriff of the city of St. Louis, had only a special interest in the chattels in question, to the extent of the execution in his hands, and it was error to assess the value of the chattels in his favor in any larger sum than the amount of his execution. Pierce v. Louder, 54 Mo.App. 25; Gregory v. Tavenner, 38 Mo.App. 627; Dixon v. Atkinson, 86 Mo.App. 24; Hall v. Brammell, 87 Mo.App. 285; Gaston v. Johnson, 107 Mo.App. 590; Dilworth v. McKelvy, 30 Mo. 149; Boutelle v. Warne, 62 Mo. 350; Dougherty v. Cooper, 77 Mo. 529; Lewis v. Mason, 94 Mo. 551; Kerr v. Drew, 90 Mo. 147; Gentry v. Templeton, 47 Mo.App. 55.
Wm. F. Smith and Henry Higginbotham for respondents.
(1) (a) A plaintiff is bound by the allegations of his petition, and although the latter may contain unnecessary averments, yet, as long as the petition stands unamended, he is bound thereby. Oglesby v. Railroad, 150 Mo. 137, 177, citing many cases; Bruce to use v. Sims, 32 Mo. 246, 251; Ramsey v. Henderson, 91 Mo. 560, 595; Upham v. Allen, 76 Mo.App. 206, 211; Railroad v. Iron Works Co., 117 Mo.App. 153, 164; Butts v. Woods, 4 N.M. 343, 348; Capital Lumbering Co. v. Learned, 78 Am. St. 792, 795, S. C., 36 Oregon, 544; Weyerhauser v. Foster, 60 Minn. 223; Houston v. Smythe, 66 Miss. 118, 124. (b) And in such case it is competent to instruct the jury in an action of replevin that the fact is admitted as against the pleader. Butts v. Woods, 4 New Mex. 343, 348; Acc. Edwards v. Eveler, 84 Mo.App. 405, 411. (c) When the value alleged in the pleading of one party is admitted by the pleading of his adversary no proof of such value is necessary. McCord v. Railroad, 21 Mo.App. 92, 95; Selking v. Hebel, 1 Mo.App. 340; Edwards v. Eveler, 84 Mo.App. 405, 411. (d) Party cannot introduce evidence to contradict his pleading. McFarland Real Estate Co. v. Girardi Hotel Co., 202 Mo. 597, 605; Lenox v. Harrison, 88 Mo. 491, 495; Weil v. Posten, 77 Mo. 284, 387; Butts v. Woods, 4 New Mex. 343, 347-348. (e) The jury may find the present value as against the plaintiff upon his sworn statement made when suing out the writ, making allowance for the depreciation in value, if any, between these dates. Schultz v. Hickman, 27 Mo.App. 21, 25; Merrill Chemical Co. v. Nickells, 66 Mo.App. 678, 686-688; Jennings v. Sparkman, 48 Mo.App. 246, 253-254; 2 McQuillin's Mo. Practice (1907), section 2114. (f) The plaintiff cannot complain that the jury accepted his own sworn statement made when he was suing out his writ of replevin. Schultz v. Hickman, 27 Mo.App. 21, 25-26 Acc. Johnson v. Simmons, 61 Mo.App. 395, 400. (g) Nor can party complain that the jury accepted his own estimate of the value of the goods as stated in his own bond. State to use v. Johnson, 1 Mo.App. 219, 220-221. (h) While plaintiff did not ask to amend her petition as to the value of the property, still replevin being sui generis, the plaintiff may not retreat at will; and it would hot have been error to refuse to allow an amendment in this respect. Selking v. Hebel, 1 Mo.App. 340.
--This is an action in replevin. The trial below resulted in a verdict and judgment in favor of the defendants, and plaintiff brought the case here by appeal. We transferred the cause to the Supreme Court upon the theory that the amount in dispute on appeal was beyond our jurisdiction (see Ferguson v. Comfort, 159 Mo.App. 30, 139 S.W. 218); but the Supreme Court held otherwise and transferred it to this court (see Ferguson v. Comfort, 264 Mo. 274, 174 S.W. 411).
In May, 1907, one Charles D. Comfort, one of the defendants herein, recovered a judgment against one John W. Baker and another in the circuit court of the city of St. Louis, for the sum of $ 5132.25 and costs. Execution, issued upon this judgment, was placed in the hands of defendant Nolte, then Sheriff of the city of St. Louis, and by him levied upon certain household property located upon the premises occupied by Baker and his wife, Ella M. Baker, in the city of St. Louis. Thereupon, and prior to the removal of the property from the premises aforesaid, Ella M. Baker, the plaintiff herein--who has since married one Ferguson--filed with defendant Nolte, as Sheriff, a third party claim to the property so levied upon, averring the value thereof to be $ 6000. Thereupon Comfort, the execution creditor, gave an indemnifying bond in the sum of $ 12,000, as provided by law, and the defendant sheriff was proceeding to execute the writ in his hands when plaintiff instituted this action in replevin. Upon the execution and delivery by plaintiff of a replevin bond to the coroner, that officer took possession of the property under the writ of replevin and delivered the possession thereof to plaintiff. The property was never, in fact, removed from plaintiff's premises.
Both in her petition and in her affidavit annexed thereto plaintiff stated that the property was of the value of $ 6000. The separate answers of defendants Nolte and Comfort admit this to be the value thereof.
Upon the trial plaintiff undertook to testify as to the circumstances under which she signed the affidavit annexed to the petition, but this testimony was excluded. Witnesses for plaintiff, however, were permitted to give testimony relative to the value of the property, from which it appeared that the value thereof at the time of the trial was about $ 1450.
In submitting the cause to the jury the court refused certain instructions requested by plaintiff and gave three instructions offered by defendants. The first of these directed a verdict for defendant, Comfort. The second virtually directed a verdict for defendant Nolte, for it told the jury that if they found that prior to the institution of this action plaintiff filed with the defendant sheriff the third party claim shown in evidence, and thereupon the sheriff took from defendant Comfort the indemnifying bond read in evidence, then plaintiff could...
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