Lumsden v. Howard
| Decision Date | 14 January 1922 |
| Citation | 236 S.W. 420,210 Mo.App. 645 |
| Parties | HUGH LUMSDEN, Appellant, v. CHARLES HOWARD, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of New Madrid County.--Hon. Sterling H McCarty, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
Harry C. Blanton for appellant.
(1) Replevin will lie for the recovery of goods sold but not delivered even though mixed, if of the same nature and a division of equal value can be made, such as in the case of oats, wheat or corn, and each party may recover his aliquot part. 2 McQuillin's Missouri Practice, page 1290, sec 2093; Kaufman v. Schilling, 58 Mo. 218; Groff v Belche, 62 Mo. 400; Huff v. Henry, 57 Mo.App 341; Mine Co. v. White, 106 Mo.App. 222, 80 S.W. 356; Sikes v. Freeman, 204 S.W. 948. (2) Title to the corn passed to plaintiff upon the sale and payment of the fifty dollars, and even though defendant was not in Canalou to receive the corn when delivery was tendered, it was his, and he can recover it by action in replevin. Groff v. Belche, 62 Mo. 400; Estes v. Harnden, 153 Mo.App. 381, 134 S.W. 43. (3) An instruction must not be broader than the pleadings, and if it is, is erroneous. Moss v. Jacksonville Co., 226 S.W. 592; Rawlings v. Frisco Ry., 175 S.W. 935; Scrivner v. Mo. P., 169 S.W. 83, 260 Mo. 421. (4) An instruction must not be broader than the proof. Rawlings v. Frisco, 175 S.W. 935; Riley v. City of Independence, 167 S.W. 1022, 258 Mo. 671. (5) An instruction requiring plaintiff in civil suit to prove his case by direct and positive testimony is erroneous, because casting too great a burden upon him. Grocery Co. v. Sanders, 74 Mo.App. 657; Long v. Martin, 152 Mo. 668, 54 S.W. 473; Culbertson v. Hill, 87 Mo. 553; 1 Blashfield's Instructions (2 Ed.), sec. 295, p. 635.
--This cause is in replevin for 319 bushels of corn. Defendant gave a delivery bond and retained the corn. A jury trial resulted in a verdict for defendant, and plaintiff appealed.
The petition and affidavit are in the usual form. The answer is a general denial. Plaintiff claims that on March 13, 1920, he bought 350 bushels of corn from defendant, and paid $ 50 down. Defendant claims that he sold plaintiff no certain number of bushels; that he did sell plaintiff some corn, but that plaintiff got all he bought and all that defendant sold to him. Other necessary facts will appear in the course of the opinion.
Plaintiff in effect makes two assignments: (1) That the court erred in giving certain instructions requested by defendant; (2) that certain evidence was erroneously admitted over plaintiff's objection and exception.
The two instructions complained of are numbered 7 and 10, and are as follows:
Defendant lived about seven miles from Canalou where the corn was to be delivered, and defendant brought two loads in, and plaintiff was not present at the minute, and no definite place according to defendant, had been determined upon where the corn might be put, so defendant sold these two loads to one Daugherty. There was no evidence that defendant brought any more corn except these two loads when plaintiff was not present to receive it, or had not provided a place for it, yet instruction 7 reads like defendant had endeavored to deliver the whole 350 bushels and could not because of plaintiff not being present to receive it, or failing to furnish a place to put it. If plaintiff bought the corn, as he claims, and paid $ 50 down to bind the bargain, then the title therein passed to him, subject to defendant's right to the possession--till balance of purchase price was paid, and plaintiff could maintain replevin. [Sec. 2170, R. S. 1919; Woodburn v. Cogdal, 39 Mo. 222; Sikes v. Freeman, 204 S.W. (Mo. App.) 948; Huff v. Henry, 57 Mo.App. 341; Kauffman v. Schilling, 58 Mo. 218; Groff v. Belche, 62 Mo. 400. And merely because plaintiff was not present to receive the two loads and had not provided a place to put the two loads would certainly not excuse defendant for failing to deliver the balance. At most plaintiff's failure to be present to receive or to furnish a place to put the two loads would affect only these two loads and no more. The evidence discloses that defendant made no effort to find out whether plaintiff had provided a place to put the two loads. If he had it is clear that he would have found a place. But defendant says that he sold these two loads to Daugherty because plaintiff was not at Canalou to receive them and had provided no place. If this were true then we do not think that defendant could be held for these two loads. Defendant had hauled the corn seven miles, and he was entitled to have a place to unload at Canalou, where he was to deliver, without running the plaintiff down to find a place, and without peddling the neighborhood to find out if plaintiff had provided a place. Plaintiff contends that since the title had passed to him, it made no difference about his absence or failure to furnish place, and to support this contention plaintiff cites Groff v. Belche supra, and Estis v. Harnden, 153 Mo.App. 381, 134 S.W. 43. We are of the opinion that these cases do not support plaintiff's contention; nor have we found any case to support such proposition. We hold that if plaintiff was not present to receive the two loads of corn, or had failed to prepare a place of which defendant knew then p...
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