Johnson v. St. Joseph Stock Yards Bank
| Decision Date | 09 November 1903 |
| Citation | 76 S.W. 699,102 Mo.App. 395 |
| Parties | GARRA K. JOHNSON, Appellant, v. ST. JOSEPH STOCK YARDS BANK and another, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.
AFFIRMED.
Judgment affirmed.
R. L Spencer and Jno. C. Landis, Jr., for appellant.
(1) Where trust funds are placed in the hands of a party, they can not be surrendered by him without the consent of the party or parties placing it there, and if he does, he is guilty of conversion. Seehorn v. Bank, 148 Mo. 256. (2) Where bailor is entitled to a portion of the deposit, he may recover for conversion in damages to the extent of his part of the deposit. Keyes v. Bank, 52 Mo.App. 323. (3) An equitable defense may be set up in an action for trover, but must be specially pleaded. The court erred in holding that Johnson must sue Ownbey in equity first and have an accounting before maintaining this action for conversion against respondents. 21 Ency. of Pleading and Practice, p 1107; McLeod v. Maloney, 3 N.Y.S. 617. (4) No advantage may be taken of an equitable defense unless pleaded. Kennedy v. Daniels, 20 Mo. 104; Le Beau v. Armitage, 47 Mo. 138; Biffle v. Pullan, 125 Mo. 108. (5) Defect of parties is waived by failure to demur for that reason, or to set up such fact by answer. The court therefore, erred in sustaining the demurrer on account of a defect of parties, if there was such defect. R. S. 1899, secs. 598 and 602. (6) A bailee is estopped from disputing bailor's title and is liable unless he shows he turned over the thing bailed to a party with a paramount title. Pulliam v. Burlingame, 81 Mo. 111; Sherwood v. Neal, 41 Mo.App. 416; Bricker v. Stroud, 56 Mo.App. 183.
D. C. Reeves for respondents.
(1) The contract entered into by and between Garra K. Johnson, plaintiff, and Frank M. Ownbey, on the 7th day of October, 1901, constituted said Johnson & Ownbey partners as to the cattle in question. Whether the relation of partnership exists depends largely on the intention of the parties. Kellogg Newspaper Co. v. Farrell, 88 Mo. 594. (2) The formation of a co-partnership is one of intention by all the parties thereto, which must be arrived at from the contract itself and surrounding circumstances. Mackie v. Mott, 146 Mo. 255. (3) Each partner is possessed per my et per tout; or, in other words, each has a joint interest in the whole, but not a separate interest in any particular part of the partnership property. 2 Am. and Eng. Ency. of Law, 95, and cases cited therein. (4) Where a man hires or leases animals for a certain time, with the privilege of returning the same animals or others of as good quality, the title rests in him on the delivery of the animals. Hurd v. West, 7 Con. (N. Y.) 752; Carpenter v. Griffin, 9 Paige 310; Same case, 37 Am. Dec. 396; Wilson v. Fenney, 13 Johns. (N. Y.) 358. The increase of the said cattle were the joint property of Johnson and Ownbey. Spooner v. Ross, 24 Mo.App. 604. (5) At any event the suit was not brought in the name of all the real parties in interest. An action of trover can not be maintained in this State when the plaintiff has neither the right of property in nor the right of possession to the chattels alleged to have been converted. Bank v. Fisher, 55 Mo.App. 54; Parker v. Rhodes, 79 Mo. 88; Myers v. Hale, 17 Mo.App. 204; Deland v. Vanstone, 26 Mo.App. 297; Spooner v. Ross, 24 Mo.App. 599; Converse v. Symms, 10 Mass. 377; Goodnight v. Thieman, 17 Mo.App. 427; Upham & Gordon v. Allen, 76 Mo.App. 206.
In October, 1901, the plaintiff and one F. M. Ownbey entered into a written contract by which the former "conveyed" to the latter sixty-eight head of cattle to be cared for and kept by such latter for five years. The contract provided that the increase was to be equally divided when two years old; that the cows should remain with the herd; that at the expiration of the five years the latter should return to the former sixty-eight head of cattle (the same being the number of the original herd conveyed to such latter) and thirty-two head of calves. After the cattle went into Ownbey's possession under the contract, certain differences sprang up between the contracting parties in respect to the expense, management, etc., of the cattle. It appears that fifty-six head--cows--of the herd were shipped to Prey Bros. & Cooper, a commission firm at St. Joseph--but whether shipped by plaintiff or Ownbey the evidence is in sharp conflict. It is conceded that they were billed by the railway carrier to one Gustavson, who was plaintiff's agent, but Ownbey testified that they were so billed contrary to his directions and against his consent. Both Gustavson and Ownbey accompanied them from the place of shipment to St. Joseph. When sold by the commission firm it was agreed between Gustavson and Ownbey that the net proceeds of the sale--$ 1,047.36--might be paid into the defendant bank to be handled by it as a special deposit in whatever way it saw fit pending the decision of a court, a compromise, or, some amicable settlement between the parties interested. Accordingly, the commission firm did so deposit such proceeds with the defendant bank and accompanied the deposit with a written statement setting forth the foregoing agreement between Gustavson and Ownbey.
It should have been stated that the Denver Live Stock Commission Company had previous to the arrival of the cattle notified the St. Joseph commission firm that it held a mortgage on the cattle given to it by Ownbey, and to retain the proceeds of the sale. And this fact was mentioned in the statement of the St. Joseph commission company to the bank already referred to.
It appears that shortly after the deposit was made, the bank without the consent of the plaintiff at the instance of Ownbey paid over said proceeds to the Denver Live Stock Commission Company. The plaintiff thereupon brought this action against the defendant bank and in his petition alleged that he was the owner of the said proceeds so deposited and that defendants had converted the same to their own use by paying it out to other parties not entitled thereto, without his knowledge or consent. The answer contained a general denial to which were added a number of allegations which in effect pleaded the said contract between plaintiff and Ownbey and claiming that the said proceeds belonged to Ownbey and that by his order it--the bank--had paid over the same to the Denver Live Stock Commission Company. The replication was a general denial.
The cause was tried by the court without the intervention of a jury. At the conclusion of all the evidence the court by an instruction declared that under the pleadings and evidence the finding would be for defendant, and gave judgment accordingly. The plaintiff appealed.
We think the judgment is impregnable to assault on account of any error committed by the court during the progress of the trial. We have been unable to discover any possible theory upon which the plaintiff was entitled to recover. Under the contract entered into between plaintiff and Ownbey, the latter acquired an interest in the cattle thereby conveyed but as to the extent of that interest it is not material in the present action to inquire. It sufficiently appears that Ownbey became a joint owner of such cattle with the plaintiff. If the plaintiff were suing the defendant for the conversion of the cattle instead of for the proceeds arising from a sale of them, it is clear that he would not be entitled to recover, for the law undoubtedly is that a joint owner of personal property has no right to sue severally for its...
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