Neal v. Heinrichs

• Decision Date: 05 February 1924
• Docket Number: No. 17974.,17974.
• Citation: 259 S.W. 492
• Parties: NEAL v. HEINRICHS et ux.
• Court: Missouri Court of Appeals

259 S.W. 492

NEAL v. HEINRICHS et ux.

No. 17974.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Appeal from St. Louis Circuit Court, John W. Calhoun, Judge.

"Not to be officially published."

Suit by George W. Neal against Dr. J. C. Heinrichs and wife. Decree for plaintiff, and defendants appeal. Affirmed.

Kane, Schreiber & Newman, of St. Louis, for appellants.

Hall & Dame, of St. Louis, for respondent.

ALLEN, P. J.

This is a suit in equity. The petition alleges that the defendants are husband and wife; that on February 19, 1916, plaintiff borrowed from defendant Dr. J. C. Heinrichs $80, and deposited with said defendant a certain diamond ring of the reasonable value of $350; that thereafter plaintiff paid certain sums to said defendant on account of said loan, and on November 14, 1919, tendered the balance, principal and interest, thereon, but that said defendant refused such tender and refused to return the ring, And it is alleged that said defendant has given the ring to his codefendant, his wife, and that defendants have the ring in their possession. And plaintiff offers to pay to defendants whatever sum may be found due on account of the loan, with lawful interest. The prayer is that defendants be enjoined from selling or otherwise disposing of the ring; that plaintiff be allowed to redeem; and that defendants be compelled to surrender the ring to plaintiff upon payment by him of the balance due on the loan with lawful interest.

The answer is a general denial.

The trial court found for plaintiff and entered a decree in accordance with the prayer of the petition; from which judgment defendants prosecute this appeal.

Plaintiff's testimony shows that prior to February 16, 1916, the ring having been pledged by him to a pawnbroker as security for a loan, he talked with defendant Dr. Heinrichs whom he had known for many years, telling said defendant of his financial difficulties, and that Dr. Heinrichs offered to pay the loan to the pawnbroker, saying that he would keep the ring and take care of it for plaintiff; that in August, 1916, plaintiff paid to Dr. Heinrichs $10 on account of the loan, later borrowed $5 more from said defendant, and thereafter, on June 2, 1917, paid the interest then due on the loan. Plaintiff testified that thereafter, and prior to September 10, 1919, he saw Dr. Heinrichs many times, and told him on various occasions that he did not want to lose the ring, and that he expected to be able to pay him. And plaintiff says that at no time did said defendant make a direct demand upon him or notify him that the ring would be disposed of unless the loan were paid. He further testified that on September 10, 1919, he went to Dr. Heinrichs' office, telling him that he wanted to get the ring, and that said defendant said that he had disposed of it, but would give plaintiff no further information; that plaintiff had other conversations with defendant touching the matter in October of that year, and on November 14, 1919, tendered to said defendant the amount of the loan and interest, which tender was declined.

Plaintiff's testimony further shows that at the time of the original transaction with Dr. Heinrichs, instruments were signed by the parties similar to the exhibits set out below, and that like instruments were executed upon other occasions. These exhibits are as follows:

"This is to certify that I have sold to Mr. George Neal one diamond ring (in a ring) for the sum of $75.00 seventy five paid on same 10 cents. balance due $74.90, seventy four ninety cts. He has option to redeem some 30 days from date, 6% interest. Dr. J. C. Heinrichs."

"This is to certify that I have sold and conveyed to Dr. J. C. Heinrichs (1) one diamond ring (in a ring) for the sum of $75.00, seventy-five dollar, on June 2nd, 1917. St. Louis, Mo. Geo. W. Neal."

Plaintiff testified that Dr. Heinrichs insisted upon handling the matter in that way; that said defendant stated, in substance, that he did not want it to appear that he was engaging in the business of lending money on jewelry.

Plaintiff adduced evidence tending to show that the diamond in the ring was...