Robinson v. Peru Plow & Wheel Co.

• Decision Date: 06 January 1893
• Citation: 31 P. 988,1 Okla. 140,1893 OK 2
• Parties: ROBINSON et al. v. PERU PLOW & WHEEL CO.
• Court: Oklahoma Supreme Court

31 P. 988

1 Okla. 140, 1893 OK 2

ROBINSON et al. v. PERU PLOW & WHEEL CO.

Supreme Court of Oklahoma

January 6, 1893

Error to district court, Kingfisher county; A. J. SEAY, Judge.

Action by the Peru Plow & Wheel Company against Samuel F. Robinson and Clarence L. Gibson to recover damages for the alleged conversion of a stock of farming implements. From a judgment for plaintiff, defendants bring error. Reversed.

In February, C. purchased goods from plaintiff company on credit, and in the following May made a contract with plaintiff's agent, which was intended by both parties to be a sale of the property back to plaintiff. On a trial for the conversion of the goods, one of defendants, who took possession under a mortgage from C., was asked on his redirect examination if he took an inventory of the stock at the time he took possession of it, which was the time of the alleged conversion, and, having answered in the affirmative was asked to state its actual cash value at that time, which was objected to as not proper redirect examination. Held that, as on his examination in chief the witness was not asked in regard to the value of the property, and the question involved new facts so far as his testimony was concerned, the objection was properly sustained.

John I Dille and Cutlip & McCartney, for plaintiffs in error.

J. W McLoud and V. M. Hobbs, for defendant in error.

GREEN C.J.

This was an action of trover and conversion in the district court of Kingfisher county, brought by the defendant in error against the plaintiffs in error to recover damages for the alleged conversion of a stock of farming implements consisting of plows, harrows, and cultivators, and of the value of something more than $2,000. A trial was had at the October term, 1890, which resulted in a verdict and judgment in favor of the defendant in error for the sum of $1,900 and costs of suit. The plaintiffs in error bring the record into this court by petition in error, and assign the following errors: First. There was error in the proceedings, by which the plaintiffs in error were prevented from having a fair trail. Second. There was error in the amount of recovery; the same being too large, and appearing to have been given through prejudice. Third. The verdict is not sustained by sufficient evidence. Fourth. The verdict is contrary to the evidence. Fifth. Errors of law occurring at the trial, and excepted to at the time. Sixth. The verdict is contrary to the eighth instruction given by the court. Seventh. The court erred in the exclusion of testimony offered by the plaintiffs in error, and material to the issues. Eighth. The court erred in refusing to give the 3d, 4th, 5th, and 6th instructions asked by plaintiffs in error. Ninth. The court erred in giving the 1st, 3d, 5th, and 6th instructions for defendant in error. Tenth. Because it does not affirmatively appear from the record that the court had jurisdiction of the cause. Eleventh. Because it does affirmatively appear from the record that the court had no jurisdiction of the cause. Twelfth. The petition does not state facts constituting a cause of action. Thirteenth. There was error in rendering judgment on the general verdict. Fourteenth. The answer to the eighth interrogatory is not supported by the evidence, and is contrary to the evidence. Fifteenth. The court erred in overruling a motion for a new trial. The amended petition, on which the cause was tried in the court below, alleges the following facts: First. The plaintiff is a non-resident of the territory of Oklahoma, and is a resident of the state of Illinois. Second. That on or about the 28th day of May, 1890, the plaintiff was the owner and in possession of the following personal property, and describing it, and giving the number of plows, harrows, and cultivators, and alleging that the property was located on lot 16, block 7, in the village of Kingfisher. Third. That in the month of June, 1890, the defendants wrongfully and unlawfully converted said property to their own use, and took possession of the same, and have ever since wrongfully detained possession of said property; and that prior to the commencement of this action the plaintiff demanded possession of said property from said defendants, which demand was refused by the defendants. Fourth. That the plaintiff is still the owner of said property, and that the property is of the value of $2,082.07, which sum is due and payable from the defendants to the plaintiff; and the plaintiff demands judgment for the value of the said property in the sum of $2,082.07, with interest from the date of judgment at the rate of 7 per cent., and costs of suit. To this amended petition the plaintiffs in error appeared and answered, admitting-- First, the allegations of the first paragraph of the petition, and denying, second, all the other allegations of the petition.

Before proceeding to a statement of the facts of the case, it may be well to dispose of the error assigned that the petition does not state facts sufficient to constitute a cause of action for, if no cause of action is stated in the petition, there was nothing upon which the judgment could be rendered, and it is the settled law that a declaration or petition which does not state a cause of action will not support a judgment. In the common-law action of trover and conversion the material averments are that the plaintiff is the owner of the property, describing it with reasonable certainty, and that the defendant wrongfully took and converted the property to his own use; or that the defendant, being in the lawful possession of the property, wrongfully converted the same to his own use, and that the plaintiff was entitled to the possession at the time of such conversion. The gist of the action is the wrongful conversion of the property, and the fiction of the finding of the property by the defendant was never traversable. The petition in this case does aver all the facts which are necessary to constitute the cause of action,--that the defendant in error was the owner of the property, and that the plaintiffs in error wrongfully took and converted the same to their own use, describing the property and alleging its value; and the petition was legally sufficient. It appears from the bill of exceptions that one B. V. Cummins, of the town of Kingfisher, on the 18th day of February, 1890, at Kansas City, Mo., signed an order for the property in controversy in this suit, and in pursuance of which the property was shipped and delivered to him at Kingfisher. The contract was made with one T. H. Martin, as the agent of the Peru Plow & Wheel Company, and was written on one of the company's blanks; and its provisions, so far as they are material, are as follows: "Please ship the following order for plows, etc., on or about March 10, marked 'B. V. Cummins, Kingfisher, I. T., at list prices annexed, less a discount of 40 per cent., (except where net prices are designated.) Discount on all repairs 25 per cent. For which we will pay you (with exchange or express charges) as follows: (See back of contract.) Cultivators and gophers net, payable October 1, 1890. All other goods payable July 1, 1890, for spring trade, and Nov. 15th for fall trade. All payments to draw 10 per cent. interest on cultivators and gophers, after Oct. 1st, 1890, and on all other goods after July 1st, 1890, for spring trade, and Nov. 15th for fall trade. In consideration of the exclusive sale of your plows in Kingfisher and vicinity for the coming spring trade, I agree to handle no other make of plows during same period, nor to countermand this order, except on payment of 20 per cent. of the net amount of goods hereby purchased to the Peru Plow and Wheel Co. as liquidated damages. The notice and conditions on opposite page are made a part of this contract, and order is given subject to the conditions mentioned therein. B. V. CUMMINS. Accepted, subject to approval of Peru Plow and Wheel Co. T. H. MARTIN, Agent." On the back of this order, under the head of "Remarks," is the following indorsement: "B. V. Cummins to remit in cash, every thirty days, for all goods sold, and for all remittances so made is to have a cash discount of 8 per cent. Goods on hand June 1st to be settled for as per term of contract within." And this contract was approved by the Peru Plow & Wheel Company on the 1st day of March, 1890. After the property was shipped to and received by Cummins at Kingfisher, he engaged in the business of retailing the same, until about the 28th day of May, 1890, when he again called on Martin, the agent of the company, at Kansas City; and, after a conference between them, a new contract was agreed upon as to so much of the property as had not been sold by Cummins, and was written on one of the company's blanks, and was signed by Cummins and Martin, subject to the approval of the company; and the property embraced in this new contract is the property in controversy in this suit; and the new contract, as near as it can be copied from original, is as follows: "K. C., May 28th, 1890. Peru Plow and Wheel Co. Peru, Illinois. All freight east of Council Bluffs, Iowa, or Kansas City, Missouri, to be credited on receipt of paid freight bill at factory. Goods on hand, embraced in bill of March 17, 1890. At list prices annexed, less a discount of 40 per cent., (except where net prices are designated.) See back of contract. In consideration of exclusive sale of your plows in Kingfisher, El Reno and vicinity, for the coming fall trade, *** agree to handle no other make of plows during same period, nor to countermand this order, except on payment of 20 per cent. of the net amount of goods hereby purchased to Peru Plow and Wheel Co. as liquidated damages. The notice and conditions on opposite page are...