Hope v. Costello

• Court: Kansas Court of Appeals
• Writing for the Court: ARNOLD, J.--
• Citation: Hope v. Costello, 297 S.W. 100, 222 Mo.App. 187 (Kan. App. 1927)
• Decision Date: 06 June 1927
• Parties: ELEANOR M. HOPE, RESPONDENT, v. NELLIE COSTELLO ET AL., APPELLANT. [*]

297 S.W. 100

222 Mo.App. 187

ELEANOR M. HOPE, RESPONDENT, v. NELLIE COSTELLO ET AL., APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

June 6, 1927

Appeal from the Circuit Court of Jackson County.--Hon. James H Austin, Judge.

REVERSED.

Judgment reversed.

Albert R. Strother for respondent.

McCune Caldwell & Downing for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is an action in damages based upon an alleged bailment by plaintiff to defendants of a certain three-piece fur set. The suit was instituted on March 5, 1924, against Anna Costello and Nellie Costello, doing business in Kansas City, Mo., as milliners, under the firm name and style of "Costello." Plaintiff has suggested that since the argument and submission of this case in this court, defendant Anna Costello has died. This review, therefore, proceeds as to the other defendant. [Neevel v. McDermand, 278 S.W. 818, 822.]

The facts of record are that, in the year 1917 said business of defendants was being conducted at 105 and 107 East Eleventh street in said city, and plaintiff, who then resided at the Hotel Muehlebach, in Kansas City, Missouri, had been a customer of defendants for some time. Defendants' testimony is that in September, 1917, defendant Nellie Costello, at the request of plaintiff, purchased on approval from a New York house the set of furs figuring in this controversy; that on September 14, 1917, plaintiff called at defendants' store and agreed to buy the furs at their exact cost to defendants, to-wit; $ 450; the furs consisted of a hat, stole and muff; that in the afternoon of said date the fur set, packed in a wooden box made especially for such articles was delivered to plaintiff at her hotel. On October 10, 1917, plaintiff, through her personal maid, returned the furs to defendants' store, but defendants refused to accept them; that, thereupon the maid said she had another errand to perform and sought permission to leave the box containing the furs for a short while. The maid did not return and at about 1:30 P. M. of the same day, defendants again sent the box to plaintiff at her hotel. The next morning at about 10:30, plaintiff, by her chauffeur, again returned the box to defendants' store; the chauffeur walked into the store and without saying anything threw the box on the floor and departed; that thereupon defendants had their porter take the box back to the Muehlebach Hotel, but receipt was refused by the hotel employees under plaintiff's instructions; that the porter brought the box back to defendants' store; that thereupon defendants sought advice of their counsel who sent the following letter to plaintiff:

"Oct. 11, 1917.

"Mrs. George D. Hope,

"Muehlebach Hotel,

"Kansas City, Mo.

"Dear Madam:--

"Miss Costello has placed in our hands for collection a bill against you for $ 450 for a set of imported furs purchased by you on September 14th. We will be pleased to receive your check in payment of this bill. This set of furs which was returned to Miss Costello's store by your chauffeur is being held subject to your order. If you have any instructions to give us as to the disposition of it please advise us without delay.

"Yours respectfully,

"HLMcC:ER"

Plaintiff replied as follows:

"Kansas City, Mo.,

"Oct. 15, 1917.

"Messrs. McCune, Caldwell & Downing,

"Kansas City, Mo.

"Gentlemen:

"Responding to your request to advise you without delay regarding Miss Costello's claim of my liability for a single set of furs, which alleged liability she desires you to enforce, I beg to say that I do not owe the lady you name anything of the nature referred to, nor am I in any way liable to her. If she claims to hold anything whatever, subject to my order you may advise her, she is entirely mistaken as to being holder for me, and that for such reason I have no disposition to make of any such thing.

"Yours respectfully,

"MRS. GEO. D. HOPE."

Defendants moved the box from the salesroom where plaintiff's chauffeur had thrown it and placed the box containing the furs in their packing room where they kept all their extra goods. Defendants sold their business on July 1, 1918, and defendant Nellie Costello personally carried the box containing the furs to her home at Liberty, Mo., and placed it in a large safe, or vault, at a lumber yard operated by her brother, and in January, 1919, she carried it back to Kansas City and placed it in the packing room at their new place of business at 1023 Grand avenue; that this was the room in which defendants stored their own merchandise. In June, 1922, defendants discovered that the fur set was so infested with moths that its value was practically destroyed; that Miss Nellie Costello burned the fur parts of the hat and muff, keeping the remainder which defendants delivered to plaintiff on demand in 1924.

Miss Nellie Costello testified that furs depreciate with age and are very susceptible to moths; that storage charges for such articles of such value as here involved are from $ 15 to $ 20 per year in Kansas City; that she had paid $ 450 for the furs and that she had no profit in the sale of same to plaintiff; that she did not place them in storage because she could not afford it and because the furs were the property of plaintiff.

The record further shows that plaintiff insisted that she had made no purchase of the furs, while defendants declared she had bought them. Suit was instituted by defendants herein in the court of a justice of the peace to recover the price of the furs, $ 450, and judgment was rendered for that amount. The case was appealed to the circuit court of Jackson county, where a plea in abatement was overruled. An appeal to the Supreme Court on the order overruling the plea in abatement was dismissed by that court. On April 8, 1922, judgment was rendered in favor of defendants herein in the circuit court. There was an appeal to the Supreme Court from said judgment, but said appeal was dismissed by that court.

On June 2, 1923, plaintiff filed a petition seeking to enjoin execution, said petition reciting:

"The facts being that complainant had never become the purchaser of the fur for which she was sued and had never received or accepted the same as purchaser but had repeatedly refused to accept and receive the articles sent to the hotel where she stopped; and had never paid nor agreed to pay or assume liability for the same in cash payment or otherwise as the terms used by said defendants, as plaintiff implied."

An order was entered by the circuit court sustaining a demurrer and dissolving the restraining order. From this order plaintiff appealed to the Supreme Court, but that court also dismissed the appeal. Thus, in a game of "shuttle-cock and battle door" the cause was bandied back and forth until January 16, 1924, when plaintiff herein paid the judgment and had same satisfied of record. During all this period of approximately seven years, the furs, or what remained of them, were in possession of the defendants.

It seems that up to the date of the payment, as above stated, plaintiff contended she had not purchased the furs; but about that time, or soon thereafter, she assumed the attitude that she had so purchased them, and had bailed them to defendants and that defendants were liable in damages for the negligent destruction thereof by moths and on this ground, based the present suit.

The petition is in part as follows:

"That on, to-wit: the 10th day of October, 1917, plaintiff delivered to said defendants at their place of business in said Kansas City one three-piece fur set consisting of hat stole and muff, then new and in good condition and of the value of four hundred fifty ($ 450) dollars, theretofore sold and delivered by said defendants to plaintiff, and then and there the property of plaintiff to be kept by defendants for plaintiff until such time thereafter as the same should be demanded by plaintiff of said defendants; that defendants received said property from plaintiff and undertook and agreed to keep the same for plaintiff and to deliver the same to plaintiff upon demand therefor by plaintiff as aforesaid; that, thereafter, and on to-wit, the 16th day of January, 1924, plaintiff demanded said property of defendants but defendants then wholly failed and refused and still fail and refuse to deliver to plaintiff said hat and muff and each of them and the same have both been and now are wholly lost to plaintiff, and defendants then delivered to plaintiff said stole, but the same then was and now is in this condition, to-wit, that the fur part of said stole then was and now is wholly separated from the lining thereof and both said fur part and said lining then were and now are so...