Pantz v. Nelson

• Citation: 135 S.W.2d 397
• Decision Date: 04 December 1939
• Docket Number: No. 19473.,19473.
• Parties: MILDRED PANTZ, RESPONDENT, v. JOSEPH T. NELSON, APPELLANT.
• Court: Missouri Court of Appeals

135 S.W.2d 397

MILDRED PANTZ, RESPONDENT, v. JOSEPH T. NELSON, APPELLANT.

No. 19473.

Kansas City Court of Appeals, Missouri.

December 4, 1939.

Appeal from the Circuit Court of Jackson County. — Hon. Emory H. Wright, Judge.

AFFIRMED.

Watson, Ess, Groner, Barnett & Whittaker for appellant.

(1) The judgment should be reversed because the court refused to admit in evidence Exhibit 15. Defendant wrote a letter to plaintiff stating that he had a list signed by her father showing which property belonged to her, that he had stored the same for her in a storage house, and that the remaining property belonged to him. Banque de France v. Equitable Trust Co., 33 Fed. (2d) 202; Kagee v. Bencich (Cal. App.), 81 Pac. (2d) 265; Martin v. Bank of America (Cal. App.), 41 Pac. (2d) 200; Terwilliger v. Browning King & Co., 185 N.Y.S. 17; Nelen v. Cowell, 123 Atl. 897, 45 R.I. 465; 26 R.C.L. 1115; Griggs v. Meeks, 264 Pac. 91, 37 Wyo. 282; Johnston v. American Finance Corp., 182 Okla. 567, 79 Pac. (2d) 242; Kelly v. Oliver Farm Equipment Sales Co., 169 Okla. 269, 36 Pac. (2d) 888; Donaldson v. Wellington Hotel Co., 175 Ill. App. 623; Marcus v. Chicago, M., etc. Co., 167 Ill. App. 638; Cumberland Tele. & Tele. Co. v. Taylor, 44 Ind. App. 27, 88 N.E. 631; Phillips v. Shackford, 44 Atl. 306, 21 R.I. 422; Gillet v. Roberts, 57 N.Y. 28; Ward v. Moffett, 38 Mo. App. 395; Flannery v. Brewer, 66 Mich. 509, 33 N.W. 522; Felcher v. McMillan, 103 Mich. 494, 61 N.W. 791; Siebold v. Larue, 144 N.L.S. 658; Buffington v. Clark, 8 Atl. 247, 15 R.I. 437; Dowd v. Wadsworth, 14 N.C. 130; Shea v. Chin, 229 N.Y.S. 24, affirmed 249 N.Y. 617; Landers, Frary & Clark v. Fulton Metal Co., 165 N.Y.S. 229; Wellington v. Wentworth, 49 Mass. (8 Metc.) 548; Breese v. Bange (N.Y.), 2 E.D. Smith 474; Miller v. Smith (Pa.), 8 Leg. Int. 50; Teeple v. Hawkeye Gold Dredging Co., 137 Ia. 206, 114 N.W. 906; Fifield v. Maine C.R. Co., 62 Maine 77; Phelps v. Gilchrist, 28 N.H. 266; McLean v. Graham, 5 U.C.Q.B.O.S. 741; Race v. Chandler, 15 Ill. App. 532; Pollard v. Pollard, 207 Ala. 270, 92 So. 488; Greenberg v. Stevens, 212 Ill. 606, 72 N.E. 722; Supervisors of Kewaunee County v. Decker, 30 Wis. 624. (2) The judgment should be reversed because the court refused to admit in evidence Exhibit 17, because said Exhibit constituted a written offer to return to plaintiff the property alleged to have been converted, and because (a) defendant had come into the possession of the property rightfully. Ward v. Moffett, 38 Mo. App. 395; Gilbert and Miller v. Peck, 43 Mo. App. 577; Howell, Jewett & Co. v. Caryl & Co., 50 Mo. App. 440; Bigelow v. Heintz, 53 N.J.L. 69, 21 Atl. 109; Woolley v. Carter, 7 N.J.L. 85; Whittler v. Sharp (Utah), 135 Pac. 112; Harden v. Conwell, 205 Ala. 191, 87 So. 673; Bitterman v. Hern (Tex. Civ. App.), 32 S.W. 341; American Surety Co. v. Hill County, 254 S.W. 241, 267 S.W. 265; Delano v. Curtis, 89 Mass. (7 Allen) 470; Sutton v. Great Northern R. Co., 99 Minn. 376, 109 N.W. 815; Worman v. Kramer, 73 Pa. 376; Whitaker v. Houghton, 86 Pa. 48; Churchill v. Welch, 47 Wis. 39, 1 N.W. 398; Warder v. Baldwin, 51 Wis. 450, 8 N.W. 257; Lucas v. Sheridan, 124 Wis. 567, 102 N.W. 1077; Farr v. State Bank, 87 Wis. 223, 58 N.W. 377; Clarke-Lawrence Co. v. Chesapeake & Ohio R. Co., 63 W. Va. 423, 61 S.E. 364; Farrell v. Stafford, 203 Ill. App. 357; American Exp. Co. v. Brunswick, 4 Ill. App. 606; Y.M.C.A. v. Harmon, 61 Ill. App. 639; Yale v. Saunders, 16 Vt. 243; K.C. Oil Co. v. Harvest Oil & Gas Co. (Okla.), 194 Pac. 228; Murphy v. John Hofman Co., 163 N.Y.S. 932; Whittingham v. Owen, 8 Mackey 277; 2 Cobbey on Chattel Mortgages, sec. 732; 4 Sutherland on Damages (3 Ed.), sec. 1140; 4 Sutherland on Damages (4 Ed.), p. 4298; Fisher v. Prince, 3 Burr 1363; Pickering v. Trustee, 7 T.R. 53; Erle v. Holderness, 4 Bing. 462, 6 L.J.C.P. 68; 1 Moore & P. 254; Moon v. Raphael, 2 Bing. 310; Cook v. Hartle, 8 Car. & P. 568; Brown v. Canada Port Huron Co., 15 Manitoba L. Rep. 638; Knight v. Chicago, etc. R. Co., 122 Mo. App. 38; Tucker v. Hagan (Mo. App.), 300 S.W. 301; Crescent Mfg. Co. v. N.O. Nelson Mfg. Co., 100 Mo. 325; Niehaus v. Gillanders (Mo. App.), 184 S.W. 949; Ward v. Ely-Walker Dry Goods, etc. Co., 248 Mo. 348; Glasgow v. Metr. St. Ry. Co., 191 Mo. 347.

Cornelius Roach for respondent.

(1) The trial court properly refused to admit Exhibit 15. 22 C.J., p. 272, par. 271; Watson v. Bissell, 27 Mo. 220; Ragsdals v. Achuff, 324 Mo. 1159, 27 S.W. (2d) 6; State ex rel. Gneckow v. Hostetter et al., 105 S.W. (2d) 929; Johnson v. Mason, 163 S.W. 260; Strother v. McFarland, 184 S.W. 483; Ess v. Griffith, 128 Mo. 50. (2) Exhibit 17 was properly excluded from evidence. Koch v. Brach et al., 24 Mo. 542; Bank v. Metcalf et al., 44 Mo. App. 494; Norman v. Home, 36 Mo. App. 419; Citizens Bank v. Scott Co. Milling Co., 243 S. W. 433; Millerdsen v. Larrabee, 192 S.W. 103; Hornsby v. Knorpp, 232 S.W. 776; Sherman v. Commercial Printing Co., 29 Mo. App. 31, l.c. 38; Allen v. McMangle, 77 Mo. 478; Gilbert & Miller v. Pack, 43 Mo. App. 577; 3 Suth., Dam., 538; Pickering v. Trustee, 77 T.R. 53; 1 Addison on Torts, sec. 541; Hart v. Skinner, 16 Vt. 138; Bucklin v. Beals, 38 Vt. 653; Norman v. Rogers, 29 Ark. 53; Yale v. Saunders, 16 Vt. 243; Ward v. Moffet, 38 Mo. App. 395.

SPERRY, J.

Mildred Pantz, plaintiff in the circuit court, sued defendant, Joseph T. Nelson, for the value of certain of her personal property alleged to have been converted by defendant to his own use. Plaintiff obtained judgment and defendant appeals. We will continue to refer to the parties as plaintiff and defendant.

Plaintiff is the daughter of C.C. Nelson, deceased. Defendant is the brother of C.C. Nelson. Deceased owned and operated the Carlton Hotel in Kansas City, and, for value received, executed and delivered to defendant a note and mortgage covering said hotel, which mortgage was foreclosed on December 2, 1937, and defendant became the purchaser at foreclosure sale. Deceased had also, on October 7, 1935, made, executed and delivered to defendant a bill of sale whereby he conveyed to defendant all furniture, fixtures, dishes, etc., located in said hotel, except such as belonged to guests.

Immediately after the foreclosure sale, defendant took possession of the hotel, including furnishings, and placed Mrs. Holmes in charge as manager. On or about December 18, 1937, defendant caused to be placed in storage a dining room set, a clock, three mirrors, a cabinet, a chair and two trunks, same being no part of the property herein sued for and being the property mentioned in defendant's exhibit 15, hereafter mentioned, and caused the receipt therefor to be sent to plaintiff who was in New York. Plaintiff testified that she, upon receiving this storage receipt, wrote Mrs. Holmes regarding the belongings claimed by her in this suit, and that Mrs. Holmes wrote her a letter, dated January 19, 1938, which was introduced in evidence, and which is, in words and figures as follows:

"My dear Mildred:

"Just have your letter regarding your things left here on Dec. 18th, Mr. J.T. Nelson ordered what he calls yours sent to the A.B.C. Storage Co. The warehouse receipt was sent to you at the Hotel Muehlebach as soon as received here. After holding it for two weeks they returned it to the sender, who sent it back to me. I called your attorney, who told me to send it to you there. The only thing I can advise you is to write to Mr. J.T. and let him answer all questions."

Plaintiff further testified that she then wrote defendant regarding her other belongings, the subject of this suit, and that she received a letter from defendant dated February 16, 1938, reading, in part, as follows:

"Just a month and fifteen days before he died I had a long talk with him at the Carlton. He had given me a mortgage on all the furniture and fixtures of every kind and description — in checking this over he said there was a bed included that was at some furniture store (I am told now that this was sold and the proceeds sent to you). In checking over this furniture he pointed out and made a list of all he said belonged to you and this was exactly what was sent to storage. The dining room set he said belonged to Dick and I asked Dick to get this out which he did. Was advised by an attorney to do this and possibly avoid any damage by fire or water. The remaining furniture in the Carlton belongs to me and I will be lucky indeed if I get fifty cents on the dollar of the amount involved." (Italics ours.)

Plaintiff testified that she had given Mrs. Holmes a complete list of her furniture during the summer of 1937; that she arrived in Kansas City about February 22nd, called on Mrs. Holmes, at the hotel, and requested delivery of her furniture; that Mrs. Holmes told her "that my uncle had given instructions not to let me have anything in the Carlton."

The following instrument, which contains a list of goods sued for herein, was identified as having been signed by deceased, and was introduced in evidence.

                                      "EXHIBIT 8
                t                              "July 27th, 1935
                

"The following furniture in Carlton Hotel belongs to Mildred Nelson de Pantz and can be had any time called for:

"1 Great Grandmother bed. "1 Hallchair — straight-bot from Keithes. "1 Love seat — blue Chinese velvet with linen cover (good repair). "1 big davenport — black silk worn — (linen cover). "1 small black Chinese table low (before davenport). "1 French inlaid table — dull finish. "1 Great Grandmother chair red cover. "1 Great Grandfather chair green cover. "1 big Oriental rug real — pad for under rug. "1 long Chinese table. "1 telephone table. "1 purple big chair. "1 console table — French (in basement) "1 long floor mirror. "1 green bedroom set (bed, highboy or chest of drawers, dressing table, floor length mirror, desk, desk chair and one stook with broken seat). "1 black teak wood tea table (Mrs. Holmes' room). "1 matching black teakwood chair.

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