McGraw v. O'Neil

• Decision Date: 04 March 1907
• Citation: 101 S.W. 132,123 Mo.App. 691
• Parties: JOHN McGRAW, Respondent, v. HENRY O'NEIL et al., Appellants
• Court: Kansas Court of Appeals

101 S.W. 132

123 Mo.App. 691

JOHN McGRAW, Respondent, v. HENRY O'NEIL et al., Appellants

Court of Appeals of Missouri, Kansas City

March 4, 1907

Appeal from Jackson Circuit Court.--Hon. Shannon C. Douglass, Judge.

AFFIRMED.

Judgment affirmed.

Haff & Michaels and L. W. McCandless for appellants.

(1) An excessive verdict may sometimes be cured by remittitur; but there are exceptional cases including such excessive verdicts as in the case at bar, where the excess in a verdict is not curable by remittitur. Hewitt v. Steele, 118 Mo 474; Watt v. Watt, L. R., App. Cas. 115; Gurley v. Railroad, 104 Mo. 233; Burdict v. Railroad, 123 Mo. 238; Rodney v. Railroad, 127 Mo. 693; Chitty v. Railroad, 148 Mo. 77, 166 Mo. 435; Smoot v. Kansas City, 92 S.W. 365; Ice Co. v Tamm, 90 Mo.App. 200; Sheedy v. Brick Works, 25 Mo.App. 531; Clark v. Ins. Co., 61 Mo.App. 185; Malloy v. Railroad, 173 Mo. 85; Bolton v Railroad, 172 Mo. 105; Longan v. Weltmer, 180 Mo. 335; Hollenbeck v. Railroad, 141 Mo. 112; Perrette v. Kansas City, 162 Mo. 253; Doty v. Steinberg, 25 Mo.App. 334; Unterberger v. Scharff, 51 Mo.App. 109; Pritchard v. Hewitt, 91 Mo. 550; Koeltz v. Bleckman, 46 Mo. 321; Matthews v. Railroad, 26 Mo.App. 86; Watson v. Harmon, 85 Mo. 446; State to use v. Frank, 22 Mo.App. 46; Stocke v. Albert, 8 Mo.App. 577; Lee v. George Knapp & Co., 137 Mo. 392; Spiro v. Transit Co., 102 Mo.App. 266; Spring Co. v. Tool Co., 103 Mo.App. 109; Russell v. Cassidy, 108 Mo.App. 581; Helm v. Railroad, 98 Mo.App. 426; Fury v. Merriman, 45 Mo. 501; Pratt v. Blakey, 5 Mo. 208; Porter v. Railroad, 71 Mo. 83; Friedman v. Pub. Co., 102 Mo.App. 695; Hipsley v. Railroad, 88 Mo. 353; Ensor v. Smith, 57 Mo.App. 584; Powell v. Railroad, 59 Mo.App. 340; Empey v. Cable Co., 45 Mo.App. 425; Helm v. Bassett, 9 Mo. 54. (2) McGraw was guilty of such misconduct towards the jury as to require a retrial of this cause. Tatlow v. Grantham, 66 Mo.App. 512; Kennedy v. Holladay, 105 Mo. 34. (3) The trial court erred when it refused to permit appellant O'Neill to testify who appeared to be "in control" of the cattle here in question at the date of the alleged conversion. Iron Co. v. Roberts, 87 Ala. 441; Locke v. Hedrick, 24 Kan. 765; Farrell v. United States, 110 F. 943.

Boyle, Guthrie & Smith for respondent.

Filed argument.

OPINION

JOHNSON, J.

Action to recover damages for the conversion of personal property. Plaintiff had judgment and an appeal was allowed defendants to the Supreme Court, but on motion therein filed the cause was transferred to this court on the ground that the Supreme Court had no jurisdiction over it. After recovering judgment in the trial court, the plaintiff, John McGraw, died and the action now stands revived in the name of the administrator of his estate.

The facts necessary to a proper understanding of the case thus may be stated. Mr. McGraw, who was a farmer and stockman living in Kentucky, bought two hundred head of cattle for feeding purposes from defendant commission company, a dealer in live stock at the stockyards in Kansas City, gave his promissory note in payment of the purchase price and secured the same by chattel mortgage on the cattle. The commission company sold and transferred the note to a bank in Quincy, Illinois, and by indorsement became bound for its payment. When the note matured, the loan by agreement of all the parties in interest was extended and a renewal note and mortgage were executed and delivered to the commission company and in turn indorsed and delivered to the Quincy Bank. This note was dated March 3, 1902, and by its terms matured (without grace) on September 3d following. After buying the cattle, McGraw removed them to a ranch he owned in Cowley county, Kansas, and they were there at the time of the alleged conversion. A month or more before the maturity of the note, the commission company learned from the broker in Kansas City, who represented the Quincy Bank in the transaction, that payment of the note would be required on the date of maturity and witnesses for defendants testified that several letters were written and mailed by the commission company to plaintiff, some directed to his address in Kentucky and others to the ranch in Kansas, informing him of the fact that the note would have to be paid. Receiving no answer to these communications and becoming alarmed over the prospect of having to protect its indorsement, the commission company resolved to take possession of the cattle under the chattel mortgage, ship them to Kansas City and sell them on the market. Accordingly, defendant O'Neil, who was manager of the commission company, went to the Kansas ranch, found plaintiff's foreman in charge thereof, demanded and received possession of the cattle from him and shipped them to Kansas City. This was done in the last days of August, a few days before the note fell due. The cattle were sold on the market at Kansas City on September 3rd, the date of the maturity of the note and brought a sufficient amount to pay the note in full together with the expenses incurred by defendants and leave a remainder of about $ 1,100. Defendants paid the amount due on the note to the Kansas City broker, who accepted and remitted the money to the Quincy bank, where it was retained and applied in payment of the note. On September 5th, plaintiff appeared at the office of defendant commission company in Kansas City, was informed of what had been done with his cattle, and was offered the remainder of the proceeds of the sale, but declined it and this suit followed.

The foregoing statement is taken from the evidence adduced by defendants. On the part of plaintiff evidence was introduced tending to show that he received none of the letters which defendants claim to have mailed him on the subject of the approaching necessity of paying the note. As the day of payment drew near, plaintiff then at his home in Kentucky wrote and afterwards telegraphed to a Mr. Peters, who had been an officer of defendant commission company, relative to an extension of the note. Mr. Peters had conducted for the company the preceding transactions with plaintiff and on that account plaintiff addressed him personally. Unfortunately, Mr. Peters had withdrawn from the company and was engaged in a political campaign when plaintiff attempted to correspond with him. Nothing resulted from the attempt and a day or two before the note matured plaintiff on a direct application to the Quincy bank obtained an extension of the time of payment by having the bank in Kentucky with which he did business guarantee the payment of the note to the Quincy bank. After this was accomplished, plaintiff went to Kansas City where for the first time he learned that his cattle had been seized and sold by defendants.

The petition sufficiently states a cause of action in the nature of trover. In the answer is a general denial; a plea that the cattle were voluntarily delivered to defendants by plaintiff's agent who it is alleged was duly authorized thus to dispose of them, and a counterclaim for the amount defendants paid in satisfaction of plaintiff's note with interest thereon.

The issues of fact submitted to the jury are thus defined in the only instruction given on behalf of plaintiff. "You are instructed that the plaintiff is entitled under the pleadings and uncontradicted evidence in this case to recover a verdict against the defendant for the fair market value at the time and place where taken of the one hundred and ninety-five head of cattle, taken by the defendants on September 1, 1902, and you may, if you think fit, give damages in the nature of interest at six per cent per annum, from that time, over and above the value of the cattle, at the time and place of seizure, unless you find that the plaintiff, or somebody authorized by him, authorized the defendants to take possession of, and sell the cattle before they were taken possession of and sold, or that the plaintiff subsequently to the time of the sale of the cattle, ratified and acquiesced in, and thereby consented to the sale of such cattle."

Numerous instructions were asked by defendants, but the questions of law urged on our attention do not call for special reference to them. The jury found for plaintiff on the cause of action pleaded in the petition and assessed his damages at $ 11,472.81, and found for defendants on their counterclaim in the sum of $ 7,643. Owing to a mistake made in subtraction, judgment was entered on this verdict for plaintiff for $ 3,729.81, when it should have been for $ 100 more. Motions for a new trial and in arrest of judgment were duly filed, but before they were determined plaintiff voluntarily entered a remittitur in the sum of $ 1,500. The motions then were overruled and the judgment now stands at $ 2,229.81.

It does not appear that the Quincy bank, the holder of the note and mortgage, directed or authorized defendants to act as its representative in taking possession of the cattle and selling them. Defendant O'Neil testified that he told the bank's broker at Kansas City of his intention to seize and sell the property, but he did not ask permission to act for the bank, nor is it shown that the broker had authority to grant such permission had it been asked. Defendants apparently acted on the presumption that they could exercise the rights of the mortgagee without authority from the owner of the note and mortgage and in this were supported by a provision in the mortgage which evidently was designed to clothe the defendant commission company with such right in the event it sold and assigned the paper. But the questions presented for our determination do not require a construction of this provision and in disposing of them we may assume for argument that defendants, after condition broken by the...