Moore v. Hensley

• Decision Date: 14 April 1915
• Citation: 175 S.W. 91,189 Mo.App. 326
• Parties: BEN MOORE, Appellant, v. THOMAS F. HENSLEY, Respondent
• Court: Missouri Court of Appeals

175 S.W. 91

189 Mo.App. 326

BEN MOORE, Appellant, v. THOMAS F. HENSLEY, Respondent

Court of Appeals of Missouri, Springfield

April 14, 1915

Appeal from Wright County Circuit Court.--Hon. C. H. Skinker, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Curtis & Evans for appellant.

(1) As a rule that to create an agistor's lien there must be a contract between the parties, either express or implied and apply that rule to the facts in this case and it would appear at once that the defendant cannot be entitled to such a lien for the reason that there is not one scintilla of testimony in this entire record that could lead any reasonable person to believe that any sort of a contract existed between these parties for the care and keep of the hogs in question. Cunningham v. Hamill, 84 Mo.App. 393; Powers v Botts, 58 Mo.App. 1. (2) Unless there is a contract the only way that the defendant could secure this lien would be by complying with the provisions of the stray laws. Art. 9 ch. 6, R. S. 1909, sec. 815. (3) Defendant did not comply with the stray law. He admits he had no lawful fence. Hence he must fail in his contention. Wright v. Richmond, 21 Mo.App. 76; Bayless v. Lefaivre, 37 Mo. 120; Harryman v. Titus, 3 Mo. 303; Crook & Thurston v. Peebly, 8 Mo. 344; Rice v. Underwood, 27 Mo. 551.

Jackson & Jackson for respondent.

(1) Section 8238, R. S. 1909, gives a lien for the keeping or boarding the animals. (2) Respondent has a legal right to be paid for fattening said hogs and a lien to secure and enforce the right. Powers v. Botts, 58 Mo.App. 1; again reported in 63 Mo.App. 285. (3) Respondent need only show an implied promise to pay for fattening said hogs. An implied promise establishes his right to the lien. Cases cited supra.

FARRINGTON, J. Sturgis, J., concurs. Robertson, P. J., dissents.

OPINION

FARRINGTON, J.

Plaintiff, the owner of four hogs, sued in replevin to recover them from the defendant who held them in his possession. The case was tried by the court sitting as a jury and resulted in a finding that the property belonged to the plaintiff and that he was entitled to the possession thereof, and, further: "The court doth find that the defendant, Thomas F. Hensley, is entitled to the sum of twenty dollars for the care and keep of said property while in his possession. It is therefore ordered, considered and adjudged by the court that the plaintiff recover of and from the defendant the four head of hogs described in plaintiff's petition, and it is further ordered, considered and adjudged by the court that the defendant have and recover of and from the plaintiff the said sum of twenty dollars for the care and keep of said hogs and that the same be adjudged a lien upon said property."

The plaintiff appealed from the judgment of the court, complaining of that portion thereof which adjudges a lien upon the property for twenty dollars and renders judgment against him for that amount.

The facts are that plaintiff owned the four hogs and that he resided a mile or so from the defendant; that some time during the month of October, 1913, these hogs were found in or near defendant's alfalfa field and were turned out of that field into a pasture which defendant afterwards rented for pasturage and mast. The stock law was not in force, and defendant admits that he was not maintaining a lawful fence. Defendant afterwards took the hogs out of the pasture and put them in a pen where he fed them corn for several weeks. The plaintiff then demanded that they be turned over to him. Defendant declined to do so, but demanded that plaintiff give him two of the hogs for their care and keep or that plaintiff pay him for their care and the feed they had consumed. It is admitted that defendant did not comply with the law relating to strays, such as posting, etc., as required by sections 815, 816 and 817, Revised Statutes 1909.

There being no stock law in force, defendant's act in taking the hogs and keeping them as he did without complying with the stray law was unlawful and wrongful.

It was his duty to keep them off his premises by maintaining a lawful fence. The plaintiff had a right to let them run at large.

It is doubtful from the record whether at the time defendant took up the hogs he had a right to even take them up as strays at all (Sec. 815, R. S. 1909) as the evidence seems to establish that he did so before November the first. But even if he took them up after the first day of November, his possession and retention of the hogs was equally wrongful and unlawful because of his failure to comply with the requirements of the law with reference to strays. A person to acquire any right to the possession of or a special property in a stray must take the steps provided by the statutes. [Wright v. Richmond, 21 Mo.App. 76.] And one who does take up a stray and fails to take such steps as the law requires will be treated as a trespasser ab initio. [Bayless v. Lefaivre, 37 Mo. 119; Rice v. Underwood, 27 Mo. 551; Crook v. Peebly, 8 Mo. 344; Harryman v. Titus, 3 Mo. 302.]

The object of the law, as stated in Worthington v. Brent, 69 Mo. 205, 207, 208, is as follows: "The object of the law was to encourage farmers to take up such cattle and other animals as were found on their plantations at a season of the year when feeding was usually required, and the main purpose was, by small premiums offered to the taker up, to benefit the owner who might in this way be enabled to trace his lost stock."

The defendant failed to do the very thing that entitled the defendant to relief in the case of Cummings v. Ellis, 140 Mo.App. 102, 119 S.W. 512.

It is held in Mackler v. Schuster, 68 Mo.App. 670, that a defendant must justify his possession of a trespassing stray by showing that he had a lawful fence, or that the stray was illegally at large.

To uphold the judgment under an agistor's lien would require that there had been a contract entered into for the keeping, either express or implied. [Cunningham v. Hamill, 84 Mo.App. 389; 2 Cyc. 315, 316, 317.]

It is conceded that there was no express contract between the parties, but it is claimed that there was an implied contract because Owen Gorman, a boy, had seen where the hogs had been in defendant's alfalfa field and had turned them out into Steele's pasture, which pasture defendant afterwards rented; and because Owen Gorman in a few days saw Walter Moore, a son of the plaintiff and part owner of the hogs, and in a conversation described the four hogs he had turned into Steele's pasture and asked Walter if they belonged to him, and Walter said no they didn't own any hogs of that description. This conversation admittedly took place during the time the hogs were out in Steele's pasture and before the defendant put them in his pen and commenced feeding them corn. It is not claimed that Walter saw the hogs but that he said they were not his from the description given by Owen Gorman. The only other witness relied on by de...