Koontz v. Kaufman

• Decision Date: 13 June 1888
• Citation: 31 Mo.App. 397
• Parties: GEORGE W. KOONTZ, Respondent, v. LOUIS KAUFMAN et al., Appellants.
• Court: Kansas Court of Appeals

31 Mo.App. 397

GEORGE W. KOONTZ, Respondent, v. LOUIS KAUFMAN et al., Appellants.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Cooper Circuit Court, HON. E. L. EDWARDS, Judge.

Reversed and remanded.

Motion for rehearing denied.

Statement of case by the court.

The petition in this case is as follows:

" The plaintiff states that on the twenty-fifth day of April, 1881, he was constable of Boonville township in the county of Cooper and state of Missouri, duly commissioned and qualified; that on the said day John L. O'Bryan commenced a suit by attachment before R. H. Howard, justice of the peace of said Boonville township, county and state aforesaid against one Charles Kaufman, and a writ of attachment was issued by said justice in said cause and by him directed and delivered to plaintiff as constable as aforesaid to be by him executed according to law; that in obedience to the command in said writ plaintiff as constable as aforesaid on said day seized and levied upon the following described property as the property of said Charles Kaufman, the defendant in said writ, that is to say, one two-horse wagon, one dark brown mule, one sorrel horse, one sausage-grinder, two meat blocks two meat racks, one engine and boiler, one countershaft and pulleys and five hangers; plaintiff states that on the day next after such seizure and levy, to-wit, on the twenty-sixth day of April, 1881, the said defendants, Louis R. Kaufman and Frederick Kaufman, came to the plaintiff and stated and represented to him that they the said defendants were the owners absolutely of the property seized and levied upon as aforesaid by plaintiff as the property of said Charles Kaufman, that is to say, that part of said property belonged to one of said defendants and the remainder to the other, and that he the said Charles Kaufman had no right, title, or interest whatever therein; and the plaintiff says that relying on the truth of the statements and representations so as aforesaid made to him by said defendants, that they were the owners of said property and that the said Charles Kaufman had no right, title, nor interest therein, plaintiff was induced to release and did release all of said property from such levy and on the same day delivered the possession thereof to said defendants.

1. [Plaintiff states that afterwards, at the June term, 1881, of the circuit court of Cooper county the said John L. O'Bryan instituted a suit against plaintiff on his official bond as constable as aforesaid for a wrongful release of said property from the levy and seizure as aforesaid made by plaintiff, and at the February term, 1882, of said court recovered a judgment against plaintiff in said cause for the sum of $109.30; that said defendants had notice of the pendency of said suit and were present and testified at the trial thereof. Plaintiff says he sued out a writ of error in said cause and carried the same to the Supreme Court of the state of Missouri, where, at the October term, 1884, of said court, the judgment of the circuit court aforesaid was affirmed, and plaintiff has been compelled to pay off and discharge the same, amounting with interest and costs of suit to the sum of $225.77, and has also incurred great expense for attorneys' fees in and about his defence of said suit, to-wit, the sum of $115.00.]

2. Plaintiff states that said defendants were not in fact the owners of the property seized and levied upon by plaintiff as constable as aforesaid, as they stated and represented themselves to plaintiff to be, and their statements and representations as aforesaid made to plaintiff, that they were the absolute owners of said property and that said Charles Kaufman had no right, title nor interest therein, were false and fraudulent and known to said defendants at the time so to be false and fraudulent; that said false and fraudulent statements were knowingly made by said defendants for the purpose of inducing plaintiff to release said property from said levy and seizure so made by him, and relying in the truth of said false and fraudulent statements, he was induced to release said property and deliver the possession of the same to said defendants. Wherefore plaintiff says a right of action has accrued to him, and that by means and in consequence of the false and fraudulent statements and representations so as aforesaid made to him by said defendants, he has been damaged in the sum of three hundred and fifty dollars, for which with interest and costs he asks judgment."

The defendants moved to strike out that portion of the petition included within brackets, on the ground, principally, that the proceedings and judgment therein named were res inter alios acta, and were not binding on these defendants. The court overruled the motion, and defendants excepted.

Defendants answered separately, tendering the general issue, and setting forth that they were the owners of separate portions of the property in question, describing the part each owned, and denied that their claim thereto was false and fraudulent.

Plaintiff's evidence tended to support the allegations of the petition, as to the seizure of the property under the writ of attachment, and that defendants came to him and made claim, each to certain portions of the property, and made the same in separate written claims; that they represented to plaintiff that they owned the same, as claimed, and that Charles Kaufman had no title to or interest in the same; that they also stated to him that he should not lose anything at the hands of O'Bryan if he should sue plaintiff for releasing said property; that upon the faith of their representations, as to the ownership of the property, he did release the same from the levy under the writ of attachment.

The plaintiff then, against the objections of defendants, read in evidence the record of the proceedings, judgments, etc., in the case of O'Bryan vs. Koontz, and the decision of the Supreme Court affirming the said judgment.

Plaintiff also made proof of the amount paid out by him in satisfaction of said judgment and costs both in the circuit and Supreme Court, and for attorneys' fees.

Plaintiff also introduced evidence tending to show that defendants had notice of the suit of O'Bryan against him, and that one of them gave him the names of certain witnesses, and that they attended as witnesses at said trial and testified in favor of Koontz. The plaintiff further testified that just after the trial in the circuit court had gone against him, he spoke to one of the defendants, and urged him to help him out of the judgment, when defendant answered: " You and O'Bryan will have to fight it out" ; and defendants declined to do more.

Defendants' evidence tended to show that they did not make any joint representations to plaintiff touching their ownership of the property, but each for himself as to the part claimed by him, and that they made no other statements to him. They also testified that they in fact did own said property, as claimed by them, that they attended at said trial between O'Bryan and Koontz, on subpoenae, and testified as witnesses in behalf of Koontz.

There were some facts and circumstances, developed in the cross-examination of defendants, from which the jury might reasonably infer, that as to a part of this property the title of defendants was only colorable, and that Charles Kaufman had such interest in one mule, and part of the machinery in the building, as to be subject to the writ of attachment.

The instructions given by the court on behalf of plaintiff, which bear upon the questions to be decided, are as follows:

" 1. The jury are instructed that it is admitted by the pleadings in this case that the plaintiff, as constable of Boonville township, Cooper county, Missouri, on the twenty-fifth day of April, 1881, levied a writ of attachment in favor of John L. O'Bryan and against Charles Kaufman upon the property described in the petition; and if the jury believe from the evidence that afterwards, while the plaintiff held said property by virtue of said levy, the defendants herein, for the purpose of inducing the plaintiff to release said property, went to him and stated as a fact within their own knowledge that said property did not belong to the defendant in said attachment, but that part of it belonged to Louis Kaufman and another part to Fritz Kaufman and that if the plaintiff should release said property he should lose nothing thereby; and that the plaintiff, relying upon the said representations as to the ownership of said property as true, was thereby induced to release said property from said levy; and that John L. O'Bryan, the plaintiff in said attachment, instituted suit against said Koontz for the wrongful release of said property on the ground that the same belonged to said Charles Kaufman, and that the defendants herein had notice of the pendency of said action against the plaintiff and gave him the names of persons to be summoned as witnesses therein and appeared and testified upon said trial, and that John L. O'Bryan in said action recovered a judgment against the plaintiff herein and plaintiff was compelled to pay said judgment, and if the jury believe that said representations of the defendants as to the ownership of said property were false, then the plaintiff is entitled to recover the amount he was compelled to pay to satisfy said judgment and costs and also the necessary expenses incurred by him in defending said suit.

2. If the jury believe from the evidence that the defendants for the purpose of inducing the plaintiff to release the property levied upon by him represented and stated to him as a fact within their own knowledge, that the defendant in said attachment was not the owner of said property, and...