Rembaugh v. Phipps

• Decision Date: 30 April 1882
• Citation: 75 Mo. 422
• Parties: REMBAUGH v. PHIPPS, Appellant.
• Court: Missouri Supreme Court

75 Mo. 422

REMBAUGH

v.PHIPPS, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Pettis Circuit Court.--HON. WILLIAM T. WOOD, Judge.

AFFIRMED.

E. J. Smith for appellant.

Snoddy & Short for respondent.

HENRY, J.

This is an action for the value of a spring wagon which plaintiffs allege defendant converted to his own use.

Plaintiff Rembaugh testified to his ownership and that he took it to a shop in Sedalia for repairs, and went to Colorado, leaving the wagon at the shop; was gone about three months, and when he returned, Wells, the mechanic with whom he left it, had left the county, and he could not find the wagon; that about a month after, he saw defendant driving it and using it as a delivery wagon for his grocery store; that he told defendant it was his wagon, and defendant said he had traded for it; they then parted, and within an hour plaintiff went to defendant's store and defendant told him he had taken the wagon back to the man he got it from; about three days after he again saw defendant, who told him he got the wagon of Frank Sprague, who had taken it back; witness went to Sprague's stable and found the tongue but not the wagon. Tetue testified that defendant told him he got the wagon of Sprague.

Defendant testified that his delivery wagon was broken, and that he arranged with Sprague to use the wagon in controversy a week, and, if it suited, would trade for it; drove it himself, and the first trip he made with it Rembaugh claimed it; witness went to the store, left the wagon, and told Sprague what Rembaugh said, and told Sprague to get the wagon, which he did; that defendant did not have it in his possession exceeding four hours. He contradicted Rembaugh, but it is sufficient to say, that there was a conflict of testimony, with respect to the value of, and length of time defendant had possession of, the wagon.

For plaintiffs the court instructed the jury: “If the jury believe from the evidence that plaintiffs were the owners of the wagon in controversy, and that plaintiffs had left the same with Wells, for the purpose of having it repaired, and that afterward plaintiffs, or either of them, in search of said wagon, found it in possession of defendant, and when plaintiffs, or either of them, claimed and demanded said wagon, as owners, from defendant, he, then being in possession thereof, claimed he traded for said wagon, or retained possession thereof in opposition to the claim of plaintiffs, then he was guilty of a conversion of...