Humphries v. Shipp

• Citation: 194 S.W.2d 693,238 Mo.App. 985
• Parties: John Humphries, Appellant, v. H. E. Shipp, d./b./a. Shipp Lumber Company, Respondent
• Decision Date: 17 May 1946
• Court: Court of Appeal of Missouri (US)

194 S.W.2d 693

238 Mo.App. 985

John Humphries, Appellant, v. H. E. Shipp, d./b./a. Shipp Lumber Company, Respondent

Court of Appeals of Missouri, Springfield District

May 17, 1946

Appeal from the Circuit Court of Howell County; Hon. Gordon Dorris Judge.

Affirmed.

Green & Green for appellant.

The defendant attempted to prove that plaintiff, John Humphries was a perjurer and a forger. This was an attack upon the general character and reputation of plaintiff and the court erred in rejecting the offer of proof of plaintiff that his general reputation was good. State ex rel. Thym v. Shain et al. (Mo.), 104 S.W.2d 237; Drake v. Thyne, 97 S.W.2d 128; Orris v. Chicago R. R. Co., 279 Mo 1; 70 C. J. 922. The defendant by his counterclaim alleged plaintiff was indebted to him on open account in the sum of $ 171. Plaintiff by reply denied he was indebted to defendant on open account in any sum. The evidence of defendant revealed that if plaintiff was indebted to defendant on the account the amount due was either $ 171 or $ 158. The verdict of the jury was for $ 118. The judgment based on the verdict cannot stand as there was no evidence to support the verdict. Bingham v. Schneider, 157 S.W.2d 547; Menefee v. Diggs, 186 Mo.App. 659, 172 S.W. 427; Real Estate Co. v. Investment Co., 150 Mo.App. 626, 131 S.W. 353; Shoemaker v. Johnson, 200 Mo.App. 209, 204 S.W. 962; Burke v. Woods, 279 S.W. 168. Where a foreign court which rendered judgment was of a limited, inferior or statutory jurisdiction or if proceedings were in derogation of common law jurisdiction will not be presumed but must be affirmatively shown by facts of record or fully and distinctly pleaded and proved. Toler v. Coover, 71 S.W.2d 1067; State ex rel. Stack v. Grimm, 143 S.W. 450-454, 239 Mo. 340; Central State Bank v. Moody et al., 40 S.W.2d 760; Rigler v. McClure, 189 Mo.App. 710-715, 175 S.W. 256-257. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal or of a board or officer it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. If such allegations be controverted the party pleading them shall establish on the trial the facts conferring jurisdiction. 847.50 New Code. Any person who purchases the property of another from one, other than the owner or someone authorized to sell the same, is liable for conversion of property at suit of true owner. McGeorge et al. v. Danforth, 39 S.W.2d 564; Allen v. Bagby, 133 S.W.2d 1027. The defendant pleaded and admitted he purchased from the "law" in Arkansas, lumber and building material, the property of plaintiff for which he bid the sum of $ 171. Defendant further admitted he converted to his own use certain other building material, the property of plaintiff and of a value of $ 35 according to defendant's own testimony. Therefore the verdict of the jury in finding for defendant on plaintiff's action for damages was not responsive to the issues and there was no evidence to sustain it. Burrill Collins Brokerage Co. v. Hines, 230 S.W. 371, 206 Mo.App. 609; Roman v. Boston Trading Company, 87 Mo.App. 186; Elliott v. McCormick, 19 S.W.2d 654. The defendant admitted he converted to his own use certain property of plaintiff. The jury ignored this evidence and found against plaintiff and for defendant on his counterclaim. The plaintiff under the pleadings, evidence and instructions being entitled to a verdict in some amount, this court may not assume that the jury allowed such credits on the counterclaim. Diamond v. McVey, 239 S.W. 562 (3).

W. D. Roberts and A. W. Landis for respondents.

The trial court correctly rejected testimony on the question of plaintiff's general reputation. Even if defendant had charged in his pleadings, and had offered testimony to show that plaintiff had written a false and fraudulent endorsement on the instrument which he, plaintiff, introduced in evidence, such would not be an attack on plaintiff's general reputation so as to admit testimony to sustain it. Lowe v. Montgomery, 11 S.W.2d 41. Nor will proof of contradictory statements on the part of a witness, whether such statements were made on the witness stand or out of court, authorize testimony as to his general reputation. Orris v. Chicago R. I. & P. R. R., 214 S.W. 124. Even if defendant's evidence had been of such a character that it tended to show plaintiff violated the law, still this would not put plaintiff's general reputation in issue and the admission of evidence of good reputation would have been reversible error. Humphreys v. St. Louis & San Francisco R. R. Co., 286 S.W. 738. (a) The law announced in the cases cited by appellant under "B" of Points and Authorities of his brief, is applicable only where the issue between the parties is contract or not contract and the alleged contract unalterably fixed the liability. In such cases there is always an express contract for a liquidated or specified sum. The rule announced in those cases cited by appellant is rather an exception to the general rule, which rule is that in all cases where the claim is unliquidated and the alleged contract does not unalterably fix the liability, a party will not be heard to complain that the verdict against him was not as large as it should have been, and was not responsive to the issues. Blakeley v. Miller, 167 S.W. 1136, 180 Mo.App. 389; Coyne v. Golland, 243 S.W. 376; Taylor v. Aetna Life Insurance Co., 154 S.W.2d 421(6). (b) Defendant's claim being a counterclaim was an unliquidated claim. Thayer-Moore Brokerage Co. v. Campbell, 147 S.W. 545, 164 Mo.App. 8; Brandtjen & Kluge, Inc., v. Hunter, 145 S.W.2d 1009, l. c. 1014. (c) And since defendant's claim was unliquidated and there was no contract between the parties unalterably fixing the liability of plaintiff, he should not be heard to complain on appeal that the verdict against him on defendant's counterclaim was not as large as it should have been, or that it was not responsive to the issues. Blakely v. Miller, supra; Cement Co. v. Bruce, 142 S.W. 783 (4), l. c. 786; Taylor v. Aetna Life Insurance Co., supra. Defendant's answer contains neither a defense to plaintiff's cause of action nor a counterclaim based on a foreign judgment. The authorities cited under "C" and "D" of Points and Authorities of plaintiff's brief are therefore not in point. There was no attempt to state a defense or a cause of action based upon a foreign judgment in defendant's answer. All allegations therein with reference to the attachment proceedings before the Mayor of Ellis, Arkansas, are matters of explanation of the circumstances and situation under which the lumber in question was taken by both the plaintiff and the defendant. Facts pleaded by way of explanation, introduction or inducement to the main facts or subject of the plea do not require proof. Armelio v. Whitman et al., 106 S.W. 1113, 127 Mo.App. 698; Reeves v. Lutz, 162 S.W. 280, 179 Mo.App. 61. But even if the allegations in defendant's answer with reference to the attachment proceedings and judgment in the mayor's court at Ellis, Arkansas, were considered as a defense, the defendant made no request that such a defense be submitted to the jury, and such a defense was not submitted to the jury and was therefore abandoned. Riley v. Woolf Bros., 149 S.W.2d 864 (2-3); Cervillo v. Manhattan Oil Co., 49 S.W.2d 183(2), 226 Mo.App. 1090; Carl v. Ry. Co., 258 S.W. 72(6). The only evidence that defendant ever came in possession of any lumber sold by the officers at Ellis, came from the defendant, and he very frankly testified as to just what he received, how he disposed of it and the credits he gave plaintiff on his account. Whether the Arkansas judgment was good or bad, and whether the sale was valid or void, is all beside the question. Under the pleadings, the defendant was only required to account for the material which came into his possession, or into the possession of his authorized servants or agents, thereunto duly authorized by him. Neither does the verdict furnish any proof that the jury ignored the evidence on the issues as to the property and the value thereof belonging to plaintiff, taken by defendant. The jury was not required, under the law, to specially find in its verdict the amount plaintiff was entitled to on his cause of action. The fact that the verdict was for less than the amount contended for by the defendant on his counterclaim is proof that plaintiff was given credit on defendant's counterclaim for the value of plaintiff's property in question taken by defendant as found. This the jury had the right to do. When the counterclaim was pleaded, it became a part of the single controversy between the parties, and the jury had the right to determine the amount to which plaintiff was entitled to on his cause of action and the amount the defendant was entitled to on his counterclaim, and if the amount so found to be due defendant on his counterclaim exceeded the amount so found to be due plaintiff on his cause of action to find a single verdict for the defendant for that difference. Plumbing & Auto Co. v. Lloyd, 240 S.W. 838 (6), l. c. 839; Brandtjen & Kluge, Inc., v. Hunter, 145 S.W.2d 1009 (8), l. c. 1014. Plaintiff's complaint of defendant's instruction "B" is without merit for the following reasons: Plaintiff's instruction I is of like import. It required the jury to find that the material was taken by defendant's "agent and servant acting within the scope of his employment". Plaintiff cannot complain of instruction of same import as one given at his request. American Tobacco Co. v. Shulenburg, 17 S.W.2d 557; Bowerden v. Rowland, 21 S.W.2d 899; Cantley v. Plattner, 67 S.W.2d 125. We are unable to find an allegation in the answer or testimony by defendant, Shipp, to bear...