Gaston v. Johnson

• Decision Date: 12 April 1904
• Citation: 80 S.W. 276,107 Mo.App. 590
• Parties: GASTON, Appellant, v. JOHNSON, Respondent
• Court: Missouri Court of Appeals

80 S.W. 276

107 Mo.App. 590

GASTON, Appellant, v. JOHNSON, Respondent

Court of Appeals of Missouri, St. Louis

April 12, 1904

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

Judgment reversed and cause remanded. (with directions).

REYBURN J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

This action for possession of a piano sold by plaintiff to defendant, in December, 1900, at stipulated price of one hundred and fifty dollars, originated before a justice, and a jury trial on appeal in the circuit court resulted in a verdict for defendant embodying a finding of its value at one hundred and twenty-five dollars, and one dollar damages, upon which judgment was rendered in her favor for its possession or at her election, the recovery of that sum, the assessed value, and one dollar for taking and detention of the property.

It was conceded that defendant was entitled to credit upon the purchase price agreed on in total amount of fifty-seven dollars; but plaintiff asserted title under a mortgage securing defendant's note for the purchase-money payable in monthly installments of five dollars each, in payment of which default had been made, and the defendant repudiated the legal execution of the note and mortgage, and set up a parol agreement contemporaneous with the contract of sale by the terms of which the vendor and vendees were converted into joint owners of the piano in the ratio of the aggregate paid by her toward full payment and the balance of purchase price due to him, and pursuant to which, if sold by him, she was to be reimbursed to extent of such proportionate interest. The testimony introduced tended to support the conflicting contentions of the opposing parties, the defendant, by her own statements and those of her adult daughter, asserting that the note and the unacknowledged mortgage relied on by plaintiff were thus signed by such daughter at direction of defendant, but without being read or understood, pending the absence of defendant's spectacles and in ignorance of the contents and purport of such instruments.

The instruction asked by plaintiff was refused and the court gave the following:

"1. The court instructs the jury that if they find from the evidence that defendant signed the note and mortgage in question or that her daughter with her consent signed her name to same, then you will find for plaintiff and that he is entitled to the possession of the piano in question, and assess his damages for the detention of the same at one...