Saunders v. Brosius

• Decision Date: 28 February 1873
• Parties: JOSHUA R. SAUNDERS, Respondent, v. JACOB BROSIUS, Appellant.
• Court: Missouri Supreme Court

52 Mo. 50

JOSHUA R. SAUNDERS, Respondent,

v.JACOB BROSIUS, Appellant.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Common Pleas Court of Daviess County.

James McFerran, for Appellant.

The facts stated in the second count of the petition do not constitute a substantive cause of action, they could only be considered as to the measure of damages, but such damages were too remote. (Douglas vs. Stephens, 18 Mo., 366.)

Joshua F. Hicklin, for Respondent.

VORIES, Judge, delivered the opinion of the court.

The respondent in this action brought his suit against the appellant, in the Daviess Court of Common Pleas, to recover for the conversion of certain goods in the petition named.

The petition had two separate counts, by the first of which it is stated that the defendant was the proprietor and keeper of a tavern or hotel and house of public entertainment in the town of Hamilton, in Caldwell County. That on the 11th of April, 1868, the plaintiff, who was then a traveler passing through said town, put up and stayed all night at said Hotel. That at the time he stopped at said Hotel, he left and placed in the care of defendant, a valise or carpet bag containing articles of clothing which are set forth; that after plaintiff had stayed all night at said house, he in the morning paid all charges against him, and demanded of defendant his said carpet bag, but that said defendant wholly failed and refused to deliver the same to plaintiff, and that he has ever since failed and still fails to deliver the same to plaintiff, or any of the contents thereof. The petition then states the value of the said carpet bag and articles of clothing to be $71 dollars, and asks judgment for said sum.

In a second count in said petition it is stated for a further cause of action, that at the time aforesaid in the year 1868, plaintiff was a poor man, and was compelled to do manual labor for a livelihood; that all of the wearing apparel suitable for labor, belonging to plaintiff, was among the articles contained in the carpet bag aforesaid, which was and is wrongfully held and detained by defendant. That because of said want of clothing, he was compelled to labor in clothing that was unsuitable, and intended for a different purpose, which defendant well knew; that plaintiff had been at great trouble and expense in going a long distance, to and from said hotel, for the purpose of obtaining the carpet bag aforesaid, and for the reasons herein as stated, he claims damages in the sum of forty-five dollars.

To this petition, defendant filed an answer by which he denies all of the material allegations of the petition.

The defendant then, by way of a special defense to the petition, admits that plaintiff was his guest as charged in the petition, but charges that on the morning when plaintiff left his house, he without leave of defendant, and wrongfully, went into the baggage room of defendant's hotel, and took and carried away therefrom a carpet bag of the value of twenty-five dollars, which was the property of Oliver Bucan, who was then a guest of defendant, and left the carpet bag sued for in the baggage room of defendant's hotel; in consequence of which negligence, and wrongful act of plaintiff, defendant was compelled to pay said Bucan twenty-five dollars for the carpet bag so wrongfully taken by plaintiff; shortly after this plaintiff informed defendant that the said carpet bag, so belonging to said Bucan had been lost or destroyed. That it was then agreed by and between plaintiff and defendant, that defendant should hold and retain the carpet bag sued for, until plaintiff paid the defendant the sum of twenty-five dollars which had been advanced and paid by defendant to said Bucan, which plaintiff then agreed to pay within ten days. That plaintiff failed to pay said sum or any part thereof; that defendant was ready and willing to deliver plaintiff his said carpet bag as soon as said sum should be paid. That in consequence, of the failure of plaintiff to so pay said sum, and receive his property, the said carpet bag and its contents became mouldy and worthless, by all of which defendant says he has been damaged in the sum of twenty-five...