Peerless Fixture Co. v. Frick, 25123.

• Citation: 133 S.W.2d 1089
• Decision Date: 05 December 1939
• Docket Number: No. 25123.,25123.
• Parties: PEERLESS FIXTURE CO. v. FRICK et al.
• Court: Court of Appeal of Missouri (US)

133 S.W.2d 1089

PEERLESS FIXTURE CO. v. FRICK et al.

No. 25123.

St. Louis Court of Appeals. Missouri.

December 5, 1939.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Action by the Peerless Fixture Company against Howard W. Frick and another for recovery of personalty and for damages for wrongful detention thereof, wherein defendants filed counterclaims. Verdict was for the defendants. From an order sustaining plaintiff's motion for a new trial, defendants appeal.

Affirmed, and cause remanded for new trial.

John Lally, of St. Louis, for appellants.

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

McCULLEN, Judge.

This suit was brought by respondent, as plaintiff, against appellants, as defendants, to recover certain personal property consisting of two dozen 7" plates and twenty-eight additional items, and $50 damages for the wrongful detention thereof. It was originally instituted before a justice of the peace in St. Louis County, Missouri, and thereafter was taken on appeal by defendants to the circuit court of that county where it was tried before the court and a jury, resulting in a verdict for defendants. Plaintiff's motion for a new trial was sustained. From the order sustaining plaintiff's motion for a new trial defendants have duly appealed to this court.

Defendants contend that the trial court erred in overruling their demurrer to plaintiff's petition. The abstract of the record does not show that defendants filed a demurrer to plaintiff's petition. Defendants did, however, object to the introduction of evidence on the ground that plaintiff's petition shows on its face that it does not state facts sufficient to constitute a cause of action in replevin. On an ore tenus demurrer, such as above shown, we must give plaintiff's petition the most favorable construction as well as the benefit of every fair inference in support thereof. Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797.

The petition of plaintiff alleges that plaintiff is lawfully entitled to the possession of two dozen 7" plates No. 33087, and twenty-eight additional items of the value of $150; that the same is wrongfully detained by the defendants in the County of St. Louis and have not been seized under any process, execution or attachment against the property; that the property has been injured by said defendants; that, for the taking and detention of the property and for injuries thereto, plaintiff is damaged $50; that plaintiff will be in danger of losing its said property unless it be taken out of the possession of defendants; and that its right of action occurred within one year next prior to the institution of this suit. Plaintiff prayed judgment for the recovery of the property and $50 damages for the taking and detention thereof and injuries thereto. The petition was sworn to by J. M. Todd as agent of plaintiff.

This suit having been begun before a justice of the peace, no formal pleadings upon the part of either plaintiff or defendants were required. Section 2185, R. S.Mo.1929, Mo.St.Ann. § 2185, p. 2383. Our Supreme Court has said in a number of cases that the law is well settled in Missouri that a justice of the peace court is a tribunal in which parties may appear and settle their lawsuits without the aid of attorneys; and that it would defeat the purpose of the organization and existence of such courts if the rules of practice and pleading found necessary in courts of record were applied to the proceedings of justice of the peace courts. It has also been uniformly held that statements made before justices of the peace are sufficient if they advise the opposite party of the nature and extent of the claim made, and are sufficiently specific to bar another action. Tested by these well-established rules, we think the petition in the case at bar meets the requirements of the statement of a claim before a justice of the peace. It sufficiently apprises both defendants of the nature of the claim, states specifically the kind of property which they are charged with having wrongfully detained, and obviously would be a bar to another action for the same property. We rule this contention against defendants. Iba v. Hannibal & St. Joseph R. Co., 45 Mo. 469, 471; Cameron v. Electric Household Stores, Inc., 231 Mo. App. 889, 895, 78 S.W.2d 548, 550, 551; State ex rel. Electric Household Stores, Inc. v. Hostetter, et al., 338 Mo. 79, 82, 83 89 S.W.2d 28, 29; Walton v. Carlisle, 313 Mo. 268, 279, 280, 281 S.W. 402, 405.

Defendants' abstract of the record shows that the trial court did not specify any reason for granting plaintiff a new trial. The trial from which this appeal arises was the first trial of the cause before the circuit court, and in the absence of a specification by the trial court of the ground on which plaintiff's motion for a new trial was sustained, it is our duty to affirm the court's action if it can be sustained on any ground set forth in plaintiff's motion for a new trial. King v. Mann, 315 Mo. 318, 286 S.W. 100; Riche v. City of St. Joseph et al., 326 Mo. 691, 32 S.W.2d 578.

It appears from the record that defendants each filed a counterclaim in the circuit court containing allegations to the effect that plaintiff, through its officers and agents, wrongfully and maliciously brought this action of replevin against defendants when plaintiff well knew that each of the defendants was not obligated or responsible or accountable to it in any way on any account. Each counterclaim concluded with a prayer for $10,000 actual damages and $10,000 punitive damages.

After plaintiff's motion for a new trial was sustained, defendants filed a motion to vacate the order sustaining the motion for a new trial, which the court overruled. Thereafter defendants filed a motion to assess damages, which was also overruled.

Plaintiff introduced in evidence chattel mortgage No. 16855 from Joseph Gonella, of North & South and Eager Roads, to the Peerless Fixture Company, which showed it had been filed in the office of the Recorder of Deeds, St. Louis County, June 1, 1937. The mortgage was signed by Joseph Gonella and had never been released. It was dated May 25, 1937, covering merchandise delivered by Peerless Fixture Company to a tavern at North & South Road and Eager Road in St. Louis County. The merchandise described therein consisted of dishes, glassware and silverware.

Mr. Ralph Shower, Vice President of the plaintiff company, testified that no payments were ever made on the merchandise, and the mortgage was never satisfied of record. The note secured by the mortgage was for $120.06. Mr. Shower further testified that he saw defendant Mrs. Frick on the premises of the tavern about June 10, 1937; that she then informed him she was purchasing the place; that she said arrangements had not been completed but that upon completion thereof payment would be made; that he informed Mrs. Frick that payment was expected; that, on July 5th, he told her that his company was tired of the delays; that, if they couldn't have the money, they would have the merchandise; that Mrs. Frick stated she would be down to the office and straighten it out, but that she did not come down; that he saw her a third time on the evening of the replevin; that on said occasion he saw both defendants, Mr. and Mrs. Frick, engaged about the tavern; that a good quantity of the merchandise was missing, of the value of about $34; that those that were damaged and depreciated were well worth $50; that he had discussed with Mrs. Frick the returning of the property before the replevin action was filed; that he saw the dishes, glasses, etc., in defendants' possession on the premises, and they were being used in the business.

On cross-examination, Mr. Shower testified that the original sale of the merchandise was made to Joseph Gonella and Jack Schappner; that the merchandise was delivered to and received by Joseph Gonella.

Joseph Gonella testified that he was working around the tavern; that he operated the place with Mr. Schappner for about ten days; that he worked for the Fricks until the first of July; that the Fricks said he could work for four weeks and if they liked his work they would give him more money; that he worked for Mr. and Mrs. Frick during the three weeks he was there; that the dishes and glasses he bought from the Peerless Fixture Company were used in the place.

On cross-examination, he stated he bought the goods from the Peerless Fixture Company and gave a mortgage for them; that he didn't sell the dishes to the Fricks; that when he asked Mr. and Mrs. Frick what they were going to do about the dishes, they said they were going to take care of them; that he told Mr. Shower that the Fricks bought the place and were going to take care of the...