Goodin Mercantile Co. v. Organ

• Decision Date: 25 May 1916
• Docket Number: No. 1723.,1723.
• Parties: GOODIN MERCANTILE CO. v. ORGAN.
• Court: Missouri Court of Appeals

186 S.W. 589

GOODIN MERCANTILE CO. v. ORGAN.

No. 1723.

Springfield Court of Appeals. Missouri.

May 25, 1916.

Appeal from Circuit Court, New Madrid County; Sterling H. McCarty, Judge.

Action by the Goodin Mercantile Company against L. J. Organ. From a judgment for defendant, plaintiff appeals. Judgment reversed, and cause remanded, with directions to set aside the judgment, and enter one for plaintiff.

Riley & Riley, of New Madrid, for appellant. Thomas Gallivan, of New Madrid, for respondent.

ROBERTSON, P. J.

The plaintiff held defendant's note, secured by a chattel mortgage on a team and wagon belonging to him. By mistake plaintiff delivered the note to defendant, and upon his failure and refusal to return or to pay it the plaintiff instituted this action of replevin in a justice of the peace court. After a trial in the justice of the peace court, an appeal was taken to the circuit court, where, upon a trial to the court without a jury, judgment was entered for defendant, and plaintiff appeals.

Some technical points of trial practice may be involved, but not urged, and in fact, when suggested at oral argument, it was insisted in behalf of respondent that they be ignored, and the cause considered on its merits, which we shall do.

The only question upon which issue is joined here is as to whether or not a judgment should be entered in favor of plaintiff upon all the evidence. We are of the opinion that it should. The mistake arose in this way: The defendant sold 1,522 pounds of seed cotton to Brown De Field Gin Company at East Prairie, in Mississippi county, which was weighed with the wagon and team. The weigher, on previous requests of plaintiff, which was in business in said town, issued what is called a "weigher's receipt" to plaintiff and defendant, stating the gross weight to be 5,000 pounds, the tare 3,478, and the net 2,522 pounds. The price of the cotton was 4½ cents per pound, and was so stated upon the receipt, but the total price was not placed thereon. These receipts are taken up by the Gin Company's bank in that town, by it paying, upon presentation, the amount due thereon. Upon defendant receiving this receipt, he took it to the plaintiff's place of business, where the price of the cotton was figured by its representative on the net amount as stated in the receipt, thus making the total value to appear as $113.49. The plaintiff deducted from this total $35.97, the balance due on the note, and gave the defendant $77.52 in cash and the note. The receipt was in due course of time taken to the bank for payment, when the fact was discovered that in subtracting the tare from the total weight the mistake of 1,000 pounds was made in the net weight. The plaintiff collected only the amount due on the receipt, $68.49. The defendant was duly notified, but failed to make any adjustment of the matter, and finally this suit was instituted.

The result of this transaction was that defendant got his note and $77.52 in cash for $68.49. The contention here on the part of the defendant is that since there was an amount actually due defendant on the receipt sufficient to pay his note, and that since he directed it to be so applied, and received his note duly canceled, his note is paid, and that, if plaintiff is entitled to any portion of the money paid to defendant, h...