Knipper v. Blumenthal

• Decision Date: 22 December 1891
• Citation: 18 S.W. 23,107 Mo. 665
• Parties: KNIPPER v. BLUMENTHAL.
• Court: Missouri Supreme Court

18 S.W. 23

107 Mo. 665

KNIPPER v. BLUMENTHAL.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

TROVER AND CONVERSION — DEMAND — PRACTICE.

1. Where an indorser of promissory notes, to whom they are loaned by the holder to be used as collateral security, sells them and converts the proceeds to his own use, no demand by the holder for their return is necessary before bringing an action for their conversion.

2. The technical rules of pleading formerly applicable to the common-law action of trover cannot be applied, under the Revised Statutes, to defeat an action for conversion in which plaintiff states facts which, if true, entitle him to the relief asked.

Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

Action by Elenora Knipper against Augustus A. Blumenthal, as administrator of Josephine Farnsworth, deceased, for the conversion by defendant's intestate of certain promissory notes. Judgment for plaintiff. Defendant appeals. Affirmed.

Frank, Dawson & Garvin and Chas. W. Bates, for appellant. W. M. Kinsey, for respondent.

THOMAS, J.

This action is for the recovery of the sum of $2,876.80. Plaintiff alleged that Amodee Berthold executed and delivered to defendant's intestate two promissory notes, dated March 5, 1883, payable two years after date, with interest at the rate of 8 per cent. per annum, one for $1,400, the other for $1,008, and that these notes were in July, 1883, indorsed by said intestate, and delivered to plaintiff for value. The petition then proceeded as follows: "Plaintiff still further states that in said month of July, 1883, the said Josephine Farnsworth requested plaintiff to loan her said notes, for the purpose of using them as collateral security for the benefit of said Farnsworth, and that in pursuance of said request, and upon the promise of said Farnsworth to return them, the plaintiff did deliver said notes to her for such purpose. That afterwards said Josephine Farnsworth sold said notes, received the proceeds thereof, and converted the same to her own use. That said notes were paid in full by the maker thereof at their maturity, and that said Farnsworth always neglected and refused to either return said notes to plaintiff or account to her for their value, but, on the contrary, wrongfully kept and appropriated them to her own use as aforesaid, by reason whereof the amount of said notes was wholly lost to plaintiff, to her damage in the sum of two thousand eight hundred and seventy-six dollars and eighty cents. Wherefore she prays judgment against the defendant, as administrator of the estate of said Josephine Farnsworth, for the sum of $2,876.80 and costs of this suit." The answer was a general denial, and an affirmative plea based on the theory that the notes described in the petition were never the absolute property of plaintiff, and, if ever in her possession, it was as collateral security only for the payment...