Milliken v. Larrabee

• Decision Date: 06 February 1917
• Docket Number: No. 14545.,14545.
• Parties: MILLIKEN v. LARRABEE.
• Court: Missouri Court of Appeals

192 S.W. 103

MILLIKEN v. LARRABEE.

No. 14545.

St. Louis Court of Appeals. Missouri.

February 6, 1917.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by Horace Milliken against Benjamin Larrabee. Judgment for plaintiff, and defendant appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant. Blodgett & Rector, of St. Louis, for respondent.

BECKER, J.

Plaintiff filed his statement originally in the justice of the peace court in the city of St. Louis, Mo., for the recovery of the value of three bonds alleged to have been his property, and after a hearing thereon an appeal was taken to the circuit court, and the cause was tried before the judge and a jury, which trial resulted in a verdict and judgment for the plaintiff for $293. The verdict was signed by nine jurors only. Upon the plaintiff remitting $4 from this judgment, the judgment was re-entered for $289, from which judgment defendant appeals.

There is no question before us as to the sufficiency of the plaintiff's statement. The matter originating in the justice of the peace court, where there was no pleading filed by the defendant, the cause was heard de novo in the circuit court upon the plaintiff's original statement.

The defendant is a brother-in-law of the plaintiff. In the fall of 1911 plaintiff and defendant were engaged in business together, operating peanut vending machines. In that same year the defendant, who had rented a safe deposit box for his own personal use, invited plaintiff to put any papers of value he desired into the said safe deposit box, and the plaintiff, owning two Cuban government $100 bonds and one Kansas City Home Telephone Company $100 bond, accepted the invitation and placed said bonds, for safe-keeping, in the said safe deposit box, and simultaneously therewith received a key to the box, thus giving him access thereto with the defendant. Some time in the spring of 1912 the defendant requested plaintiff to let him have his (plaintiff's) key, stating that he (defendant) had lost his key and wished to go over and get into the box. Thereupon plaintiff gave his key to the defendant, and the key was never at any time returned to him.

It is from this point that the evidence is conflicting. The testimony of the plaintiff is that defendant, shortly after plaintiff had given up his key to the box, left the city; that along about the month of July, one of the coupons on the bonds becoming due, and plaintiff desiring to have access to the box, he asked defendant, who had temporarily returned to the city, for the return of his key, but did not obtain it. Some time later, defendant again being out of the city, plaintiff went to the trust company from whom the box was rented and had them destroy the lock and open the box for him. It was found to be empty. The trust company put a new lock on the box and gave the plaintiff two keys thereto, which plaintiff testified he sent to the defendant at Columbia, Tenn. Later on the plaintiff testified that after the defendant had again returned to the city he requested him to return his bonds, but that defendant refused and told him to see his attorney.

The defendant's evidence was to the effect that some time after he had obtained the plaintiff's key to the safe deposit box, and whilst he and plaintiff were still in the peanut vending machine business, defendant at various times requested the plaintiff to give him an accounting as to their partnership business. Plaintiff made no accounting, however, and finally on one occasion the defendant, meeting plaintiff, stated to him that he was in bad health and intended to go away and wished for an accounting of the business, as he did not know anything about it. The defendant testified that then and there the plaintiff told him to take the bonds in question in this suit and hold them as security, and if he (plaintiff) did not make a good and proper accounting, the bonds were to be his (defendant's). Thereupon the defendant testified that as soon as he could he went and got the bonds out of the box, as he was going away and did not wish to leave them there. He testified that he did not remember of the plaintiff requesting him to return his key to the box, and that the plaintiff never asked him for the bonds. He testified he had the bonds in his possession since taking them out of the box; that he cut off the coupons and collected the same; that the bonds and the money collected on the coupons were in his possession; and that he had stood ready at all times to turn the bonds over to the plaintiff upon the plaintiff making a proper accounting of their partnership business. Defendant testified that the exact money that he had collected upon the coupons had from time to time been changed, in that he sometimes used it in making change, and therefore the pieces of money that he had obtained upon collecting the coupons were not, in point of fact, the identical pieces that he had originally received, but that the amount that he had received from the said coupons had never been lessened since the time of collecting same. The plaintiff, in rebuttal, denied that he had ever given the bonds to the defendant as security until he should have made an accounting, and that in the event of his failure to make an accounting they should become defendant's, but that the bonds were always his, and had been taken, without his knowledge or consent, from the safe deposit box.

The jury finding against the defendant, and in favor of the plaintiff, the defendant filed his motion for a new trial, and, amongst other grounds, there was presented that of remarks made by plaintiff's counsel in his argument to the jury alleged to be prejudicial. In support of that assignment defendant in his motion for a new trial filed certain affidavits of three jurors, being the three jurors who had not signed the verdict. These affidavits were almost identical in wording, and were to the effect that the remarks complained of as having been made by plaintiff's counsel were considered by the nine men of the jury who signed the verdict, were believed by them, and were one of the chief reasons why the said jurors signed the verdict.

The motion for a new trial having been overruled, defendant appeals.

1. The appellant contends that the court erred in refusing to give the following instruction:

"The court instructs the jury that, if they find from the evidence that defendant took the bonds in question with the consent of plaintiff, and that plaintiff did not demand said bonds of defendant prior to the beginning of this suit, and that defendant kept and had said bonds, and the interest accumulated at the beginning of this suit, then the jury will find for defendant."

The court properly refused it for the reason that it did not fit the facts in the case, as the only evidence adduced on behalf of the defendant was that the bonds had come into his possession with the consent of the plaintiff as security until an accounting should have been made by the plaintiff of their partnership affairs, and in the event of no such accounting being made then the bonds were to become the property of the defendant.

It is alleged by the defendant, and admitted by the plaintiff, that there had, in point of fact, been no accounting. The issue was clearly presented by the plaintiff of an actual conversion, and the sole issue presented by defendant was that he (the defendant) held the bonds as security and until an accounting should have been made, and upon a failure to account the bonds were to become his. That being the case, it clearly follows that, according to the defendant's own theory of the case, even had a demand for the bonds been made by the plaintiff, defendant would have refused to turn them over, because it is admitted that the plaintiff had made no accounting, and one is not required to do a useless thing.

Neither the written statement of the plaintiff, nor the testimony adduced thereunder, nor any of the testimony given on behalf of the defendant at the trial of the case would have warranted any such theory under which the court could properly have instructed the jury as requested in the said instruction of defendant which was refused by the court.

The essential requirements in said refused instruction which the defendant was entitled to have embodied in an instruction were, in point of fact, fully covered in an instruction given by the court of its own motion (to the giving of which instruction the defendant excepted and assigns as error). Said instruction is...