Gordon v. Bruner

• Decision Date: 31 March 1872
• Citation: 49 Mo. 570
• Parties: WILLIAM A. GORDON, Respondent, v. PETER S. BRUNER, Appellant.
• Court: Missouri Supreme Court

49 Mo. 570

WILLIAM A. GORDON, Respondent,

v.PETER S. BRUNER, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from Perry Circuit Court.

Nicholson, Killian & Gordon, for appellant, cited in argument Schubart v. Harteau, 34 Barb., N. Y., 447; Signot v. Redding, 4 E. D. Smith, N. Y., 285; Waterm. Set-off, § 6; 1 Vans. Pl., 2d ed., 554; Austin v. Feland, 8 Mo. 309; Waterm. Set-off, § 286; Grand Lodge v. Knox, 20 Mo. 433; McIlvaine v. Harris, 20 Mo. 457; 4 Kent, 549; 1 Nash, 104, § 13.

Robinson & Johnson, for respondent, cited in argument Slyback v. Jones, 9 Ind. 470; Barhyte v. Hughes, 33 Barb. 320; Waterm. Set-off, etc., 154-5, 149, 150, §§ 124-5; 49 Ill. 90; 48 Ill. 408; 42 Ill. 500; 3 Gill, 227; Barb. 320; Pratte v. Menkins, 18 Mo. 158.BLISS, Judge, delivered the opinion of the court.

In an action upon a promissory note for $1,000, the defendant, by way of counter-claim, sought to set-off or recoup the value of a crop of corn taken by the plaintiff from his farm. It appears that the plaintiff conveyed the farm to the defendant without reserving the growing crops, and afterward harvested a crop of corn without his consent. It also appears that plaintiff is a non-resident, and unless the defendant can recover in this manner he is without present remedy.

Under the statutory term “counter-claim” is included what was before known as a matter of set-off and recoupment, and it is admitted that damages for a trespass cannot be set off against a contract. Our statute in regard to counter-claims makes no change in this regard in the law as it existed before. Hence, unless the liability for taking the corn can be treated as arising on contract, the defendant cannot avail himself of it as a set-off proper.

It is, I believe, not disputed that when there is a conversion of personal property, and that property has been sold and converted into money, the owner may ratify the sale by suing the wrongdoer as for money had and received for his use. But where the property has not been sold but still remains in the hands of the wrong-doer, there is difference of opinion, and there have been conflicting decisions upon the question whether the owner may waive the tort and sue as for goods sold and delivered.

In Massachusetts, in Jones v. Hoar, 5 Pick. 285, to which there is a note to a former opinion, reviewing the English cases, it was held that no contract could be implied unless the goods were sold and converted into money; and the same doctrine was held in Pennsylvania in Willett v. Willett, 3 Watts, 277, and in Morrison v. Rogers, 2 Ill. 317. But such has not been the uniform ruling. In Putman v. Wise, 1 Hill, N. Y., the court holds (p. 240) that “according to the well-known right of election in such cases, the plaintiffs might have brought assumpsit as for goods sold and delivered against those who had tortiously taken their property.” To this the reporter, Mr. Hill, adds a note reviewing the cases, and disapproves the doctrine of Jones v. Hoar. (See Hill v. Davis, 3 N. H. 384; Stockell v. Watkins' Adm'r, 2 Gill & J. 326, there cited.)

The question was early brought before this court, and it was distinctly held that the owner of personal property may bring an action as upon contract against a tort feasor. (Floyd v. Wiley, 1 Mo. 430.) “It does not lie in the mouth of defendant,” says the court, “to say that he is a trespasser.” The same case was again heard ( id. 643), and the doctrine affirmed by it was also acknowledged in Johnson v. Strader, 3 Mo. 359.

It may be treated, then, as the doctrine in this State, that one who has converted to his own use the personal property of another, when sued for the value of that property as sold to him, will not be permitted to say in defense that he...