Haughawaut v. Royse

• Decision Date: 03 December 1906
• Citation: 98 S.W. 101,122 Mo. App. 72
• Parties: HAUGHAWAUT et al. v. ROYSE.
• Court: Missouri Court of Appeals

98 S.W. 101

122 Mo. App. 72

HAUGHAWAUT et al. v. ROYSE.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

1. ESTOPPEL — EQUITABLE ESTOPPEL — POSITION IN JUDICIAL PROCEEDINGS.

Where, after an action of replevin to recover certain abstract books had been commenced, plaintiffs discovered that defendant had transferred some of the books to a third person, and, to meet obligations they had assumed, made expenditures to procure the books from him, and by an amendment of their pleading set up the amount expended as an element of damages, and, on motion of defendant, the claim was struck out as not being relevant and as not constituting a proper element of damage, defendant is estopped from asserting in a subsequent action to recover the amount so expended that the claim was adjudicated in the replevin action.

2. JUDGMENT — MATTERS CONCLUDED — DAMAGES RECOVERABLE.

Where, in an action of replevin, a claim of plaintiffs for damages was stricken out on motion of the defendant as not being relevant, such ruling was conclusive in a subsequent action on the same claim against the position of the defendant that the claim was adjudicated in the act of replevin.

3. ELECTION OF REMEDIES—ACTS CONSTITUTING ELECTION.

Where, after plaintiffs commenced an action of replevin for certain abstract books, they discovered that defendant had transferred some of the books to a third person, and thereupon set up a claim for expenditures in recovering the books, which was stricken on motion of defendant, and the action proceeded to judgment in favor of plaintiffs, this did not constitute an election of remedies barring the right of plaintiffs to recover for the expenditures in a subsequent action.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by W. F. Haughawaut and others against O. D. Royse. From a judgment in favor of defendant, plaintiffs appeal. Reversed and remanded.

Shannon & Shannon, for appellants. A. E. Spencer, for respondent.

ELLISON, J.

This is an action for damages, which are alleged to have resulted to the plaintiffs by reason of the following matters as set forth in their petition: They allege that they were the owners of a set of abstract books and furniture in an abstract office, subject to two chattel mortgages; that the books were in possession of defendant, and that it was agreed between them that, if plaintiffs would pay and discharge the mortgages, defendant would deliver up to them the abstract books, etc.; that plaintiffs paid the mortgages as agreed, but defendant only delivered up a portion of the books and other items. Plaintiffs then brought an action of replevin against defendant for the books not delivered to them, wherein they asked for possession and for damages. The sheriff was unable to find the property, for the reason that this defendant had wrongfully delivered them to one John Funk. When plaintiffs made their agreement with defendant, whereby, on payment of the mortgages, defendant would deliver them the property, they, supposing they would soon become possessed of it, made a contract with one G. B. Gregg obligating themselves to deliver them to Gregg. Plaintiffs failing to get the property in their replevin against this defendant, as just stated, and being pressed with a sense of their obligation to deliver them to Gregg as they agreed they would do before they knew they themselves would fail to get them, they began a replevin action against Funk for the possession of the property so wrongfully turned over to him by this defendant. The sheriff could find only a portion of that property. Plaintiffs, realizing that they were being further foiled and delayed in getting the property, so that they could themselves deliver to Gregg, procured the consent of Funk to make known where the property was and to deliver it up, by paying him (Funk) $125 in money and canceling his interest in one-half of $200 in accounts, making $225 paid to Funk. In addition to this, they paid out $175 in prosecuting the suit against Funk for attorney's fees and traveling expenses. Plaintiffs thereupon filed an amended petition in their replevin action against this defendant, setting up the claim they here sue upon in this action as a part of their damages. This defendant, as defendant in the replevin suit, made his...