Hussey v. Ellerman
| Decision Date | 16 November 1948 |
| Docket Number | 27422 |
| Citation | 215 S.W.2d 38 |
| Parties | HUSSEY et al. v. ELLERMAN |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Edwin A. Smith, of St. Louis, for appellant.
Louis Yaffe, of St. Louis, and Boedeker & Weil and Wayne C. Smith Jr., all of Clayton, for respondent.
ANDERSON
This is an action for damages for the conversion of certain household furniture. There was a verdict below for Dora Mae Hussey and John Hussey, plaintiffs, in the sum of $ 65 actual damages and $ 1,000 punitive damages. Defendant Edgar W. Ellerman doing business as Ellerman Furniture Company, has appealed.
The furniture in question was a bedroom set, consisting of a bed, bed springs, mattress, vanity dresser, chifforobe, and a chair. It had originally belonged to defendant and was sold by him in October or November, 1945, with other items of furniture, to Kergus D. Cloudy. At that time Cloudy made a down payment of $ 120 on the purchase price and executed a note for $ 953 for the balance due. This note was secured by a chattel mortgage on the furniture purchased. The chattel mortgage was filed for record February 13, 1946.
On or about January 14, 1946, Cloudy sold to plaintiffs the bedroom set in question, which bedroom set was part of the furniture purchased by Cloudy from defendant. Plaintiffs agreed to pay $ 135 for the furniture and, at the time of the purchase, made a down payment of $ 25, and agreed to pay $ 25 per month thereafter until the full purchase price was paid. On February 14, 1946, plaintiffs made a payment of $ 40, at which time Cloudy agreed to forego the balance due. After that Cloudy disappeared and defendant started a search for the furniture -- Cloudy having failed to meet the payments due on his note. For that purpose defendant employed the services of Edward Nixon, a special deputy constable employed in a justice of the peace court in St. Louis. Nixon located some of the furniture covered by the mortgage in the possession of a man named Terry, who lived in Kirkwood. Nixon learned from Terry that the plaintiffs had possession of the bedroom set involved in this action.
At this point the testimony becomes conflicting. Mrs. Hussey testified that on February 19, 1946, she was visited by a Mr. Morant, who said he was from the Ellerman Furniture Company; but, from the whole evidence, we find that she was mistaken as to the name, as it is clear that Nixon was the person who saw her at that time instead of Morant. She testified that Morant (Nixon) at that time told her that he was looking for mortgaged furniture. He said it was mortgaged for $ 800, and that the furniture would have to be taken back. He then told her to sit tight until he found Cloudy and the rest of the furniture. She further testified that on February 26, 1946, this man, whom she called Morant, came back with another person who said he was a salesman for the Ellerman Furniture Company. These men again told Mrs. Hussey that the furniture would have to be taken back. She told them on this occasion that she had paid for the furniture and showed them the receipts for the two payments. These receipts were dated January 14, 1946, and February 14, 1946, but, notwithstanding this, Morant (Nixon) said the furniture would have to go back, and advised her that it would be better for her to take $ 25 than not to get anything. Defendant had offered Mrs. Hussey $ 25, but Mrs. Hussey said she would not take less than $ 65, the amount she had paid for the furniture; that if she was paid that amount she would let them have the furniture. She stated that she did not agree to take the $ 25 offered, and that Ellerman did not agree to give her $ 65. These men then told her that Mr. Terry would call for the furniture.
Mrs. Hussey further testified that on February 28, 1946, two men from the Ellerman Furniture Company came to her home. They told her that if she didn't let the furniture go back she would be out lots of money and be in a lot of trouble. After they had entered her house they told her they had come for the furniture. She told them they could not have it unless they gave her $ 65, but they said they did not have that amount. These men then started taking the linens off the bed, and taking things out of the drawers and throwing them over the place. Plaintiff asked them not to take the linens off the bed. She did not argue with them, but started to cry. These men then took the furniture out of the house and drove away with it.
Nixon testified that on the occasion of his first visit to Mrs. Hussey's house he was accompanied by Al Feldkamp. Feldkamp was a salesman and collector for the Ellerman Furniture Company. Nixon stated that he told Mrs. Hussey they had information that she had purchased a bedroom set from Mr. Cloudy that was under a mortgage to the Ellerman Furniture Company. Mrs. Hussey then showed them the furniture. Feldkamp then told Mrs. Hussey that he was going to bring Mr. Ellerman to her house so that they could make some agreement about the matter. He told her that he knew the furniture, and warned her not to do away with it because they had a mortgage on it. Nixon further testified that a few days later he and Mr. Ellerman called at Mrs. Hussey's house. Mr. Ellerman showed Mr. and Mrs. Hussey the mortgage he had on the furniture, which included the bedroom set in question. Nixon stated that the Husseys said they would return the furniture if they could get some money out of it, and that it was there agreed that Ellerman was to pay them $ 25 and that the Husseys agreed to return the furniture. He stated that it was also agreed that Mr. and Mrs. Hussey were to go down to the Ellerman Furniture Company and make arrangements to buy more furniture. The furniture in question was to be delivered to Terry, who in turn was to deliver it to the defendant.
Nixon't testimony as to this agreement was corroborated by the testimony of defendant Edgar W. Ellerman.
Alvin Feldkamp testified that after Mr. and Mrs. Hussey had failed to carry out this agreement he and Dave Mooney, another employee of the Ellerman Furniture Company, called at the Hussey home and took the furniture. Feldkamp testified that Mrs. Hussey made no objections. He denied that he and Mr. Mooney took the linens off the bed, or the things out of the dresser drawers and scattered them about the room. He said Mrs. Hussey herself, and another lady there, removed the linens from the bed and cleaned out the dresser drawers.
Appellant's first point is that the trial court erred in overruling defendant's motion to dismiss plaintiffs' first amended petition because said petition did not state a claim upon which relief could be granted.
The petition alleged that plaintiffs purchased the furniture on January 14, 1946, and that possession of these articles of furniture was delivered to plaintiffs; that thereafter, on or about February 28, 1946, the defendant, acting by and through its agents, servants, and employees, wrongfully entered the plaintiffs' house and wrongfully, fraudulently and maliciously took from the plaintiffs the said furniture; that all of the acts of defendant, its agents, servants, and employees were without just cause or excuse; that the reasonable value of the furniture was $ 200, and that plaintiffs had been damaged in that sum as a direct result of the acts of the defendant; and that as a direct result of the unlawful, wrongful, and malicious acts of the defendant, plaintiffs were entitled to punitive damages in the sum of $ 5000. The prayer of the petition was for $ 200 actual damages and $ 5000 punitive damages.
Defendant's complaint against the petition is that it does not allege in direct and positive terms that defendant converted the property to his own use. We find no merit to this complaint. While the petition does not allege a conversion by the use of the word 'converted,...
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