Morris v. Williams

• Decision Date: 08 June 1908
• Citation: 131 Mo. App. 370,111 S.W. 607
• Parties: MORRIS v. WILLIAMS.
• Court: Missouri Court of Appeals

111 S.W. 607

131 Mo. App. 370

MORRIS v. WILLIAMS.

Kansas City Court of Appeals. Missouri.

June 8, 1908.

1. APPEAL AND ERROR — REVIEW—QUESTIONS OF FACT—VERDICT—CONCLUSIVENESS.

A verdict supported by substantial evidence will not be disturbed on appeal, for the court on appeal will not weigh conflicting evidence.

2. SAME—OBJECTIONS IN TRIAL COURT—ADMISSION OF EVIDENCE.

A party should object to the admissibility of evidence when offered, or should at least move to strike it out, and where he does neither, he cannot complain of the admission of evidence, especially where he acquiesced therein at the trial, and for the admission of which he was as much responsible as the adverse party.

3. REPLEVIN—JUDGMENT—ALTERNATIVE PROVISIONS.

A judgment in replevin should be in the alternative where it is against the party having the possession, and it should give the alternatives prescribed by statute.

4. SAME.

Under Rev. St. 1899, § 4476 (Ann. St. 1906, p. 2454), providing that, on defendant in replevin failing in his defense, the judgment shall be against him, that he return the property or pay the assessed value "at the election of" plaintiff, etc., a judgment in replevin against defendant in possession that plaintiff recover the property or the assessed value is irregular because it does not give plaintiff the option of taking the property, on its return being offered, or the assessed value.

5. SAME—APPEAL AND ERROR — IRREGULAR JUDGMENT—CORRECTION.

A judgment for plaintiff in replevin against a defendant in possession of the property, irregular in failing to give plaintiff the option of taking the property or the assessed value, if it was rendered on a proper verdict, may be corrected by the appellate court, and the irregularity should not be treated as an error compelling a retrial of the case.

Appeal from Circuit Court, Ray County; Frank H. Trimble, Judge.

Action of replevin by Claude L. Morris against Ed R. Williams. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

A. P. Hamilton and Lavelock & Kirkpatrick, for appellant. Geo. W. Crowley and Farris, Jr. & Roberts, for respondent.

JOHNSON, J.

This is an action in replevin brought without bond before a justice of the peace for the recovery of a set of jeweler's tools and some optical instruments. A trial in the circuit court where the case was taken on appeal resulted in a verdict and judgment for plaintiff, and defendant appealed.

Defendant owned a jewelry store in Richmond and was appointed postmaster. He employed plaintiff who was a practical jeweler and optician to operate the repair and optical goods departments of the business on an agreement that plaintiff should have a share of the profits as his compensation. This arrangement continued for a year or more when differences arose between the parties and plaintiff was discharged. The evidence of defendant tends to show that plaintiff had wrongfully converted to his own use about $900 of the proceeds of the business and that he agreed to turn over his tools and optical instruments in the store at the value of $600 to apply on this indebtedness. Plaintiff in his testimony denied the existence of the shortage and of the agreement to sell his tools and optical instruments to defendant, and his evidence shows that the tools belonged to him and were in the possession of defendant, who wrongfully detained them after legal demand for their possession had been made by plaintiff. Further, it appears in evidence that immediately following the disruption of amicable relations between the parties, defendant caused plaintiff to be arrested. Plaintiff then brought this suit.

The main issue of fact submitted to the jury in the instructions given at the request of each party was whether or not plaintiff was indebted to defendant and sold and delivered his tools to him in part payment of that indebtedness. The verdict returned was as follows: "We, the jury, find that the defendant wrongfully detained the...