McElvain v. Dorrch

• Decision Date: 25 June 1918
• Docket Number: No. 2274.,2274.
• Citation: 204 S.W. 824
• Parties: McELVAIN et al. v. DORRCH et al.
• Court: Missouri Court of Appeals

204 S.W. 824

McELVAIN et al. v. DORRCH et al.

No. 2274.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Replevin by J. M. McElvain and another, doing business under the firm name of McElvain & Highfill, against Charles Dorroh and another, doing business under the name of the Caruthersville Hardware Company. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

Sam J. Corbett and C. G. She hard, both of Caruthersville, for appellants. Ward & Reeves, of Caruthersville, for respondents.

BRADLEY, J.

Action in replevin originating in a justice of the peace court to recover a horse named "Wylie," alleged to be of the value of $35. Plaintiffs recovered in the justice court, but upon trial de novo in the circuit court, before the court and a jury, defendants recovered, and plaintiffs appealed.

January 20, 1915, A. D. Martin bought from plaintiff McElvain individually six mules and gave therefor his note for $1,600, secured by chattel mortgage on ten mules and a brown horse named "Dock"; six of the mules being same ones purchased. May 4, 1916, Martin bought from plaintiffs, McElvain & Highfill, a horse, and gave therefor his note for $250, secured by chattel mortgage on same horse and two others, one of which was the horse Wylie in controversy. Martin lived on McElvain's farm, and, in addition to the $1,600 note for mules, Martin owed McElvain for rent, and some security notes McElvain had paid for Martin, and for money advanced. McElvain kept a book account of the matters and things between Martin and him, except that the $1,600 note did not enter into the book account. April 8, 1916, Martin received from McElvain a statement as follows:

"A. D. Martin account and notes in full as shown on my books at close of business.

                Apl. 8th, 1916, to Bal. accounts, notes
                  and Int.,                           $666.61
                Check & Int.                            24.75
                                                      _______
                                                      $691.36
                Cred—by two ton hay for Burnett         20.00
                                                      _______
                                                      $671.36
                

                                               "J. M. McElvain."
                

After this statement McElvain a made a deal with Martin whereby he took back at $200 each of the six mules he sold Martin, and also took back the horse included in the individual mortgage at $75. The $1,275 was credited on the $1,600 note. At the same time, as we understand from the record, McElvain, for the firm of McElvain & Highfill, made a deal with Martin whereby he took back at $150 the horse sold Martin by the firm, and this amount was credited on the $250, leaving a balance due thereon of $100. After McElvain had taken back these six mules and horse for himself, and the horse for the firm, Martin, who was indebted to defendants, presented the McElvain statement to them, and on the theory that on April 8, 1910, Martin owed McElvain all told only $671.36, and that thereafter McElvain had taken back six mules and a horse for himself, and the horse for the firm, defendants concluded that Martin had paid McElvain individually, and also McElvain & Highfill, all that was due them, and defendants, on the strength of the conclusion they formed from the statement, took a mortgage on Wylie and other property to secure their note against Martin.

Martin did not pay defendants, and they, under their mortgage, replevined the horse Wylie from Martin. Plaintiffs replevined from defendants. All mortgages mentioned were properly filed, and there is no question of priority. The defense was that the mortgage upon which plaintiffs relied had been paid off and discharged. The mortgages mentioned were all introduced in evidence, and also the McElvain statement. McElvain testified that he and Martin agreed upon the price of the mules and horse that he took back on his individual note, and also that they agreed upon the price of the horse he took back on the partnership note, that there was only $1,275 paid on the $1,600 individual note and $150 on the partnership note, and that the statement he gave Martin April 8, 1916, did not include the $1,600, but included only the account between him and Martin based on the rent, some security notes he had paid for Martin and money, and other things advanced.

A witness for defendants testified that he examined McElvain's books as to Martin's credits shown thereon, but he did not examine the charges, and did not know how much Martin owed McElvain. Defendant Dorroh testified that his firm took their mortgage on the strength of the McElvain statement, and that they replevined Wylie from Martin under their second mortgage. This, in substance, was all the evidence except as to the value of the horse in controversy. Defendants requested and the court gave this instruction:

"The court instructs the jury that, if you believe and find from the evidence in this case that the plaintiff J. M. McElvain and A. D. Martin, prior to the institution of this suit, entered into an agreement whereby the said Martin was to and did deliver to the plaintiff McElvain certain mules or stock covered by the mortgage in question, and that said property so delivered to the plaintiff was not thereafter sold in accordance with the terms and provisions of said mortgage, and you further find that said property turned over to the plaintiff by the said Martin was reasonably and fairly worth the amount of the indebtedness at that time due on said mortgage, then you will find the issues for the defendants."

McElvain did not claim that he sold under the mortgage the property he took back at an agreed price on his individual note and mortgage or that he sold under the partnership mortgage the horse he took back for the partnership at an agreed price; hence the instruction was, in...