Seitz v. Hudson, 5775.

• Decision Date: 16 June 1937
• Docket Number: No. 5775.,5775.
• Parties: SEITZ v. HUDSON.
• Court: Missouri Court of Appeals

106 S.W.2d 523

SEITZ v. HUDSON.

No. 5775.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Appeal from Circuit Court, Barry County; Emory E. Smith, Judge.

"Not to be published in State Reports."

Action by B. F. Seitz against Gene Hudson. From a judgment for plaintiff, defendant appeals.

Reversed with direction.

J. S. Davis and Royle Ellis, both of Cassville, for appellant.

FULBRIGHT, Judge.

This is an action in replevin instituted in the court of B. F. Irby, justice of the peace of Jenkins township, Barry county; change of venue granted to J. A. Carney, justice of the peace of Mountain township; cause tried on the 22d day of February, 1936; verdict for the plaintiff. From this judgment defendant appealed to the circuit court and the cause was tried at the March term, 1936, resulting in a verdict and judgment for the plaintiff, and defendant duly appeals to this court.

The property involved is one bay horse, about eight years old, weight about 1,200 pounds, and of the value of $80.

Defendant assigns as error the refusal of the trial court to give his peremptory instruction offered at the close of plaintiff's case and at the close of all the evidence. In passing upon a demurrer to the testimony, we must consider as true the evidence most favorable to plaintiff, and in so doing, draw every inference in its favor that the law will warrant. B. F. Seitz, the only witness to the material facts, testified, in part, as follows:

Direct examination: "My name is Ben Seitz. I live down by Jenkins, about three miles south. I know Gene Hudson, his father, Frank, and his brother, Cleve. * * * It is my horse; I had owned him about three weeks or something like that, when I let Cleve have him.

"Q. How did you come to part with the possession of it to him, to Cleve? A. Well, it was on the 23rd day of January, 1935. Cleve came over to my house and wanted the horse. I wasn't home when he came, I was over at Jenkins. But he looked at the horse, and I met him on the road after he looked at the horse, and he asked me what I would take for the horse and I told him. He said he didn't have the money right then, but he said he wanted it to plow with anyway.

"Q. How much did you price the horse to him at, Mr. Seitz? A. Eighty dollars. He turned around and went back and got the horse to plow with until it rained. He told me that he didn't have the money then, but that he had it borrowed. I told him that was all right, but not to mortgage the horse, and he said he didn't aim to. * * *"

Cross-examination:

"Q. Now sometime in January, 1935, January 23rd, I believe, you traded with Cleve. A. Yes.

"Q. You sold him this horse for eighty dollars? A. Yes.

"Q. And that was the price that was to be paid for this horse? A. Yes sir.

"Q. You delivered possession of the horse to Cleve? A. I told him to take the horse over there and plow it till it got so he couldn't plow. He said he was behind with his plowing and had some sod to break.

"Q. Cleve took the horse in his possession on the day you agreed on the purchase price? A. Yes sir. He kept the horse in his possession from and after that time till along in July, maybe August, when he traded him off for a car. I knew about two weeks after he traded that he had traded him off for a car, and I knew he had mortgaged the horse when he traded him off. He traded the horse and another horse to a motor company at Crane, and I knew the horse was in Stone county when he was traded off. I did not make any demand for him then. Cleve left somewhere around September, 1935, I did not go claim the horse when I found out Cleve had gone, I never did say anything to Frank or to Gene about the horse being mine. I never did mention it to them before I filed this suit. * * *

"Q. I believe it is your position in this matter that the title to the horse was to remain in you until paid for. A. Yes sir, that was the agreement. He was not to mortgage the horse until he was paid for.

"Q. At the time you sold him, or any time thereafter, did you take any written acknowledgment from Cleve, and have any written statement and have it acknowledged and deposited with the Recorder of Deeds of Barry county, Missouri? A. No. * * *"

Redirect examination: "I have never sold him nor received a penny for him. * * *"

Recross-examination:

"Q. If I understood you correctly, you stated that on the 23rd day of January, 1935, you sold this horse to Cleve...