McCormick Harvesting Mach. Co. v. Hill

Citation104 Mo. App. 544,79 S.W. 745
PartiesMcCORMICK HARVESTING MACH. CO. v. HILL.
Decision Date16 February 1904
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Ozark County; G. W. Thornberry, Judge.

Action by the McCormick Harvesting Machine Company against T. F. Hill. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

A. H. Livingston and H. D. Green, for appellant. G. W. Boon and Guy T. Harrison, for respondent.

GOODE, J.

The plaintiff sold the defendant a wheat binder or harvesting machine for $130, for the purchase price of which defendant gave plaintiff three promissory notes, secured by a chattel mortgage on two horses and two cows. Defendant subsequently made a payment of $42 on the notes, and still later delivered the binder to the plaintiff with an understanding which is in dispute. Plaintiff says it was to take the binder and credit its value as a secondhand machine on the notes. The defendant says the agent of the plaintiff came to him and demanded the machine, saying he had authority to take it; that defendant told the agent, if he had that authority, he would have to take it, and thereupon gave the machine to the agent; that he supposed the company wanted the machine in place of the debt; and there was no understanding as to the exact credit to be allowed for it on the indebtedness. It is very clear from defendant's own statement that he voluntarily relinquished possession of the machine. This is an action of replevin, which was instituted December 31, 1902, by the plaintiff, before a justice of the peace, to recover possession of the horses and cattle embraced in the chattel mortgage. The statement filed before the justice described the animals, and alleged that they were wrongfully detained by the defendant, with other appropriate averments, and prayed judgment for possession of them, and $44 damages for their detention. The defendant filed an answer containing a general denial and also a counterclaim. In the latter he averred that he had therefore purchased of the plaintiff a wheat binder for $130, and had executed his three promissory notes for the purchase price, secured by a mortgage on the horses and cows sued for by the plaintiff; that he had paid $42 on the notes; that the plaintiff, without legal process, took possession of the binder on December 26, 1902, for the purpose of applying it on said indebtedness; that it was of the value of $125; that defendant had therefore overpaid plaintiff in the sum of $37, for which plaintiff was indebted to defendant. He prayed judgment for the sum overpaid and $25, which he averred he had been damaged by the replevin suit. It should be stated that the horses and cows were not taken from the defendant's possession, and he was not, of course, damaged by the replevin action, except the amount of the costs he incurred in defending it. The plaintiff dismissed its action. The justice heard testimony, found that the right of possession of the property was in defendant at the commencement of the action, adjudged that the plaintiff take nothing by the suit, that the defendant recover possession of the property described in plaintiff's statement, the costs of the action, and found "for the defendant on his counterclaim in a sum equal to plaintiff's demand." From that judgment plaintiff appealed to the circuit court of Douglas county, and filed in that court on February 13, 1903, a replication to the counterclaim which the defendant had filed before the justice. It is as follows: "Plaintiff, for reply to defendant's answer, admits that its interest in the property described in complaint is by and through a chattel mortgage, as set out in answer of defendant; admits the payment of forty-two dollars on the indebtedness, as set out by defendant; admits that the wheat binder was turned over to plaintiff to be applied on the payment of indebtedness of the defendant; but plaintiff denies that said binder is worth the sum of one hundred and twenty-five dollars, and alleges and avers that said binder is not worth exceeding thirty dollars, for which amount plaintiff is willing to give defendant credit; and plaintiff alleges and avers that with the cash credit as aforesaid, and the binder at thirty dollars, there is still due plaintiff eighty dollars on said indebtedness; that said sum is due and unpaid, and the conditions of said chattel mortgage have been broken, and plaintiff is entitled to the possession of the property therein described. Plaintiff, further replying, denies each and every other allegation in said answer contained." A jury trial was had in the circuit court on the issues thus joined. Practically all the evidence taken during the trial related to the value of the harvesting machine at the time it was surrendered by the defendant to plaintiff's agent. At the conclusion of the evidence plaintiff's counsel prayed the following instruction, which the court gave: "The court instructs the jury that the only issue in this case is the value of the machine, and the burden of proof is on the defendant to show its value." The court gave this instruction on its own motion, but without objection or exception by the plaintiff: "You are instructed to find for the defendant in whatever amount the evidence shows the machine was worth at the time plaintiff took it." The jury returned a verdict in favor of the defendant in the sum of $87.50. A motion for new trial was filed, which set out that the verdict was against the law, against the evidence, and was excessive. A motion in arrest was also filed, which states these grounds: "First. Because the defendant's cause of action was dismissed in the justice's court, and no judgment can be rendered therein in this court. Second. Because on the record there is nothing on which to base the judgment." Those motions were overruled, exceptions saved, and an appeal taken to this court.

The foregoing statement shows that the case took a very singular course, and was tried in the circuit court as though the defendant ought to recover damages as for the unlawful conversion of the machine by the plaintiff. It is palpable that no such cause of action existed in favor of the defendant; for according to his own evidence, and one might say his own pleading, he relinquished the machine voluntarily, in order that it might be applied in either total or partial payment of his notes. The answer, in demanding credit for the value of the machine, treats the taking of it by the plaintiff as an act assented to; for, if it was tortiously taken, no payment could be asserted on such an act, but only a demand for damages. The answer averred that the machine, when taken, was worth $125, and asked a credit of that amount on account of having turned it over to the plaintiff. There was evidence to show it was worth less than $125, and some testimony that when it was surrendered its value did not exceed $30, the sum for which plaintiff was willing to allow a credit on the notes. That it was taken from the defendant's possession with his consent appears from the fact that, after he had surrendered it to the agent of the harvesting company, he (defendant) agreed to let the machine remain on his premises for the time being, and to take care of it for the plaintiff. With these facts in proof, there can be no doubt that the judgment against the plaintiff for the full value of the binder, without taking into consideration its claim against the defendant for the unpaid balance of the purchase price, was unjust. In fact, the defendant's counterclaim only demanded judgment for $37, which was the excess he averred he had paid on his indebtedness to the plaintiff. It is true he asked $25 damages on account of this action, but manifestly he was entitled to nothing, as he was not damaged at all, since the property sought to be replevied was not taken from him. Besides, no testimony was offered to support that demand. D...

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