O'Neil Implement Mfg. Co. v. Gordon

• Decision Date: 09 February 1925
• Docket Number: No. 15258.,15258.
• Citation: 269 S.W. 636
• Parties: O'NEIL IMPLEMENT MFG. CO. et al. v. GORDON et al.
• Court: Missouri Court of Appeals

269 S.W. 636

O'NEIL IMPLEMENT MFG. CO. et al. v. GORDON et al.

No. 15258.

Kansas City Court of Appeals. Missouri.

February 9, 1925.

Rehearing Denied February 28, 1925.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by the O'Neil Implement Manufacturing Company and others against H. Gordon and Max Gordon, doing business as the Gordon Metal & Scrap Iron Company, copartners. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Achtenberg & Rosenberg, of Kansas City, for appellants.

Forsee & Forsee and Wm. C. Forsee, all of Kansas City, for respondents.

BLAND, J.

This is a suit in conversion. Plaintiffs recovered the sum of $1,500 together with interest in the amount of $510, or a total sum of $2,010, as compensatory damages, and $1,500 as punitive damages, and defendants have appealed.

The facts show that at the time of the alleged conversion, defendants were engaged in the scrap iron business in Kansas City, Kan., and plaintiffs, a common-law trust, in the implement manufacturing business in Kansas City, Mo. Plaintiffs had material stored in a warehouse at 1209 Union avenue, Kansas City, Mo., consisting of about 317,000 pounds of malleable iron castings, bolts, steel wheels, and other metal parts that were used in the assembling of implements; but its office and place of business was located elsewhere in Kansas City, Mo. There were several tenants in the warehouse, among which were plaintiffs and the Plains Oil Company. There was a driveway which extended through the ground floor of the warehouse to a loading dock on the inside. The doors giving entrance to the loading dock were locked when not in use. The keys were generally in possession of the Plains Oil Company, and when plaintiffs desired to go in and out they would obtain the key from it. The key generally hung on the inside of the office of the oil company.

The oil company had two employees by the names of Hinkle and McClelland in its service at the warehouse. Plaintiffs had there a man working in tying the castings together in bundles so that they could be easily moved, plaintiffs at the time of the alleged conversion being in process of moving their goods from the warehouse to another location in the city. Plaintiffs had no record of the amount of material that they had in the warehouse for, as stated by the president, they were not required to account to any one for it. Nor was there any record made of the amount of material being moved or the amount being sold or purchased, but plaintiffs' president Mr. O'Neil, testified that they were selling about as much as was being purchased. Plaintiffs were using a five-ton truck in moving their material, which material was stored on all of the different floors of the warehouse, and they would bring down enough of these castings tied in bundles to make a load and place them on the dock so that their truck could pick them up.

About 4 p. m. of March 14, 1918, O'Neil returned to the warehouse, having been there the day before, and found 10,000 pounds of the castings that had been left upon the dock had been removed by some unknown person. About two weeks prior to the time these castings disappeared, defendants were at the warehouse with O'Neil to look at a secondhand elevator plaintiffs had for sale, and parts of this elevator were on various floors of the warehouse. In looking at these various parts of the elevator, defendants saw some of plaintiffs' castings and desired to purchase them from O'Neil, but O'Neil stated that they were not for sale. They repeatedly urged O'Neil to sell the castings to them, but without success. O'Neil testified that not only the castings upon the dock were missing, but upon making an inspection of the floors of the warehouse he found that several piles of steel axles for valves, located on the first floor, were missing also, "maybe from 20,000 to 30,000" pounds of castings and malleable iron were missing, and a number of steel wheels which were on the third and fourth floors.

He suspected that defendants had taken the goods, so he immediately went to their place of business, a junk yard. He there found at various places in the yard castings and steel wheels. He told defendants that these belonged to plaintiffs. One of the defendants stated, "If these are yours, why you can have them." Next morning he returned with two boys and began to pick up the castings and wheels and wire them together. Prior to returning, he notified the police department, which sent four officers to the yard. When he first went to the yard, defendants stated that they did not know where they obtained the castings, but upon O'Neil's threatening to have them arrested they had a conference and then reported that they had bought the castings and wheels from one Shulman. O'Neil asked them what they paid for the material, and they stated one cent a pound for the castings and a half cent for the steel. They produced check stubs showing that two checks had been issued to Shulman for the material, one for $42.38 and another for $3.50.

The day the police officers came was Saturday, and defendants said to them that they would produce Shulman on the following Monday morning. O'Neil located and removed all of the castings in the yard that were accessible and that were not covered with other material. When loaded, they weighed 6,725 pounds. O'Neil testified that there were "a good many" of these castings that were covered up and never recovered; that while they were attempting to gather them up, defendants' men would dump other metal upon them. O'Neil protested, but the men said that they could not be bothered and had to follow their instructions; that they even covered up some that plaintiff had bundled together; that there was a "dribbling of castings" through the yard to the switch track that entered it. He asked defendants to give him the numbers and destination of the freight cars that had been shipped from their yard in the past 10 days, but defendants refused.

O'Neil found that the Missouri Pacific Railroad Company maintained the switch track that entered defendants' yard, and he went to the office of that company, where he obtained the numbers of the cars, their contents and destinations, that had been shipped by the defendants. Thereafter O'Neil went to defendants and told them that he had the car numbers, etc., but they refused to give him the names of the parties who received the cars at destination. One of these cars had been billed to Feinberg & Wayne of Kansas City, who had diverted it to the West Side Foundry Company in Kansas City, Kan. O'Neil then repaired to the place of business of the West Side Foundry Company and found the car there with a part of plaintiffs' castings mixed with other metal. O'Neil testified that he threw off 2,300 pounds of castings from the top of the car, but in several other places in his testimony and in his deposition he said that it was 300 pounds, and it seems to be now admitted that this was the amount. He saw other castings in the ear that he did not throw off, apparently because they were not accessible. The foundry people told him that in unloading the car they would put the castings aside, but when O'Neil came back the car had been unloaded, and not only the castings that had been thrown off, but the other castings in the car, were gone and were not accounted for. O'Neil testified that he could not say how many pounds were in the car not thrown off; that if they ran through tie car in proportion to those he threw off, there "might" be 5,000 pounds of castings all told, but he did not know what the castings amounted to in the car for, of course, he could not see all of them and he positively refused at the trial to say as to how many pounds of castings there were in the car that he did not throw off.

When the two checks were shown O'Neil by defendants, the former suggested to them to call the bank and find out if they had been cashed, and they called the bank in his presence and found that they had not been paid. O'Neil suggested to the defendants at that time to stop payment on the checks, which they did. Afterwards, O'Neil called the bank in the presence of defendants, and the bank reported that Shulman had presented the checks, that payment had been stopped, but that Shulman called up defendants and obtained permission for the bank to cash them. Shulman appeared at defendants' place of business on Monday. The police officers being there, he was arrested by them. Shulman told the officers that he bought the goods he sold to the defendants from some persons at the warehouse. Plaintiffs placed on the stand Hinkle, who testified that Shulman had hired him and McClelland (who was out of the state at the time of the trial) to haul the castings for him from the warehouse to defendants' junk yard; that they hauled three truck loads in a one-ton truck, or about 6,000 pounds.

Defendants, who were put on the stand by plaintiffs, testified that they purchased the castings and steel from Shulman on the day that plaintiffs' material was missed, and that O'Neil had come to the yard and taken away all the material of this character that they had purchased from Shulman and identified by O'Neil as belonging to plaintiffs; that Shulman was a man of good reputation; and that they did not suspect that the property was stolen at the time they purchased it, nor did they have anything to do with the stealing of it. Shulman was an itinerant junk man, operating a one-horse wagon. Shulman, Hinkle, and McClelland were arrested, but were not convicted.

O'Neil procured a warrant to be issued in Kansas City, Kan., for the arrest of defendants, charging them with receiving 5,000 pounds of castings and other steel parts, the total value of which was $772.50, and $100 worth ...