S. Viviana & Bros. v. Columbia Can Company

• Decision Date: 05 May 1914
• Citation: S. Viviana & Bros. v. Columbia Can Company, 166 S.W. 1082, 183 Mo.App. 281 (Mo. App. 1914)
• Parties: S. VIVIANA & BROS., Respondent, v. COLUMBIA CAN COMPANY, Appellant
• Court: Missouri Court of Appeals

166 S.W. 1082

183 Mo.App. 281

S. VIVIANA & BROS., Respondent, v. COLUMBIA CAN COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 5, 1914

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.

AFFIRMED.

Judgment affirmed.

Frank A. C. MacManus for appellant.

(1) In this cause, while there is some evidence of an explanatory nature, there is really no evidence to weigh, though considerable to apply. The essential facts are uncontroverted and uncontradicted; thus it becomes the duty of the appellate court to review the evidence, and give the judgment that should have been given in the first instance. The abstract in its recitals of material facts shows little if any dispute. Bruen v. Fair Association, 40 Mo.App. 426; Knapp Stout & Co. v. Standley, 45 Mo.App. 268; Bartlett v Donohue, 72 Mo. 564. Who was the owner of the lithographic stone or plate? This seemingly is the only question involved. Dickeman v. Young, 87 Mo.App 530; Mangold v. McDonald, 61 Mo.App. 291; Lafayette Bank v. Metcalf, 40 Mo.App. 499. An appellate court is bound by the record a party makes by his or her testimony. Cooper v. Trust Co., 142 Mo.App 610. (2) A person is never liable in conversion who takes or keeps his own property. Whedon v. Ames, 28 Mo.App. 243. Plaintiffs must show either general or special property in the thing converted. Southworth Co. v. Lamb, 82 Mo. 242. This action could not be maintained in this State, when the plaintiff has neither "the right of property in" nor the right of possession to, the chattels alleged to have been converted. Parker v. Rodes, 79 Mo. 88; Barnet v. Timberlake, 57 Mo. 499; Johnson v. Bronkman, 116 Mo. 558. (3) This petition is fatally defective. A petition is fatally defective, when all the facts stated therein will not warrant a recovery. This petition does not distinguish or identify the chattel or property alleged to have been converted. State to use v. Bacon, 24 Mo.App. 403; Merrill v. Mason, 159 Mo.App. 605. There could be no conversion unless defendant had "possession of plaintiffs' property" or was in "the possession of property taken from plaintiff." An exception might exist where property had been mortgaged. Bank v. Fisher, 55 Mo.App. 54; Fairbank Co. v. Railroad, 167 Mo.App. 286. A cause of action in this character of cases depends upon the allegation of "ownership" coupled with the "right of possession" of certain chattels, or property described, so as they can be identified or distinguished. Bank v. Fisher, 55 Mo.App. 54; Fairbank Co. v. Railroad, 167 Mo.App. 286; Bank v. Tigertail M. Co., 152 Mo. 145; Schwald v. Brunjes, 139 Mo.App. 516.

R. T. Stillwell for respondents.

(1) An examination of the evidence in this case clearly shows that all facts necessary to make plaintiffs' case, have been admitted by defendant--ownership, right of immediate possession, demand for same by plaintiffs and refusal on the part of defendants. (2) Any wrongful exercise or dominion by one person over the goods and chattels of another which is inconsistent with and exclusive of the owner's rights therein, amounts to a conversion. Wilkinson v. Misner, 158 Mo.App. 551; Peoples Savings Bank v. Railroad, 158 Mo.App. 19; Shewalter v. Railroad, 84 Mo.App. 589; Hopper v. Hays, 82 Mo.App. 494; Sparks v. Purdy, 11 Mo. 219. One who has another's property and refuses, without legal excuse, to restore it on demand, is guilty of conversion whether he intends to make it his own or not. Sherman v. Commercial Printing Co., 29 Mo.App. 31; Allen v. McMonagle, 77 Mo. 478; Withers v. Lafayette County Bank, 67 Mo.App. 115; McLachlin v. Barker, 64 Mo.App. 511; Banking House v. Brooks, 52 Mo.App. 364. Demand and refusal are evidences of conversion. Southwestern Port Huron Co. v. Cobble, 124 Mo.App. 647; Newman v. Mercantile Trust Co., 189 Mo. 423.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

This is an action originally instituted before a justice of the peace. Plaintiffs prevailed before the justice, and the defendant appealed to the circuit court, where, upon a trial de novo before the court without a jury, plaintiff again had judgment, and the case is here upon defendant's appeal.

Plaintiffs' statement of their cause of action alleged "that on the 30th day of November, 1911, they were lawfully entitled to the immediate possession of six lithographic impressions, plates or designs used in making labels for the business carried on by them, which said lithographic plates or designs were then of the value of $ 25 each, or $ 150 for the six, aforesaid; that said lithographic plates had heretofore gone into the possession of defendant, who then converted them to its own use and refused, and still refuses, to surrender them to the plaintiffs, although plaintiffs have many times demanded said plates from defendant." It was then averred that, by reason of defendant's refusal to deliver "said plates" to plaintiffs, the latter suffered certain damage and loss in their business, but since there was no recovery on this score, this phase of the case need not be further noticed.

Plaintiffs are engaged in selling certain food products, and prior to the time when this controversy arose with defendant, the latter had for some years been making for plaintiffs certain cans, of tin, to contain olive oil and other substances. It appears that defendant first made certain lithographic designs for plaintiffs, to be utilized for printing labels upon plaintiffs' cans, for which plaintiffs paid the defendant; the evidence is not altogether clear as to the precise process used, but it does appear that the various designs to be thus printed or placed upon plaintiffs' cans were traced or engraved upon lithographing stones, from which impressions were made directly upon the tin of the cans. These stones were retained by defendant at its place of business, and were used in making cans for plaintiffs, upon orders given by the latter from time to time, at prices agreed upon between the parties. Some time in 1910, plaintiffs, desiring to contract elsewhere for the manufacture of their cans, demanded that defendant deliver to them these designs, or impressions thereof, which defendant refused to do.

Just what was the original agreement between the parties is a matter in dispute, since it appears to have been entirely oral; and the testimony in respect thereto is by no means clear. Plaintiffs' testimony is to the effect that they bought and paid for the lithographic designs, or engravings, for which they were charged at the rate of $ 25 each, and that it was understood that these were to become plaintiffs' property; that plaintiffs did not know that the designs were to be placed upon stones, but that however they were made they were to belong to plaintiffs. Defendant's position appears to be that the agreement made with plaintiffs did not contemplate that the latter would have any property rights in the lithographic stones upon which the designs in question were placed, but that such stones belonged to the defendant; that defendant was not guilty of conversion in refusing to deliver the stones themselves; and that defendant could only be required to deliver to plaintiffs "impressions" taken from the stones, upon being paid for the labor of making such impressions. And there is testimony in the record to the effect that, according to the custom in this business, such stones remain the property of the lithographing company, and that they are planed off and utilized for other purposes.

Certain letters written by the defendant to plaintiffs appear to throw much light upon the situation. On November 28, 1910, defendant wrote plaintiffs a letter enclosing a statement for $ 277.82 for certain cans manufactured and delivered to plaintiffs, in which letter defendant stated that plaintiffs' representative had requested defendant to deliver to him the "lithographic impressions." And defendant therein stated that it could not so deliver such impressions until the enclosed statement had been paid.

It appears that the statement referred to in the letter above was paid by plaintiffs, the latter, however, deducting therefrom $ 2.15 as being a discount to which they claimed to be entitled. And on March 28, 1911, defendant again wrote plaintiffs in answer to a letter of plaintiffs of the day previous. In this letter defendant offers to deliver the "lithographic impressions" provided plaintiffs pay the $ 2.15 above referred to and also the sum of $ 50 claimed by defendant for making certain changes which had been made in the designs at different times.

On March 30, 1911, defen...