Sherman v. Commercial Printing Co.

• Decision Date: 31 January 1888
• Citation: 29 Mo.App. 31
• Parties: L. II. SHERMAN, Respondent, v. COMMERCIAL PRINTING COMPANY, Appellant.
• Court: Missouri Court of Appeals

29 Mo.App. 31

L. II. SHERMAN, Respondent, v. COMMERCIAL PRINTING COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

January 31, 1888

APPEAL from the St. Louis Circuit Court, HON. LEROY B. VALLIANT Judge.

Affirmed.

E. P JOHNSON, for the appellant: The verdict in this case was grossly excessive, unwarranted by any interpretation of the evidence, and could not be cured by remittitur. Doty v. Steinberg, 25 Mo App. 328; Koeltz v Bleckman, 46 Mo. 320. There is no evidence to sustain a verdict for the conversion of the property in controversy by either appellant or any of its officers. 2 Greenl. on Evid., sec. 642; Rand v. Oxford, 34 Ala. 476; Allen v. McMonagle, 77 Mo. 478; McCormack v. Gilliland, 76 Mo. 655; Koch v. Branch, 44 Mo. 542; Huxley v. Hartzell, 44 Mo. 370; O'Donoghue v. Corby. 22 Mo. 393; Sparks v. Purdy, 11 Mo. 219; Niemitz v. Agricultural & Mech. Ass'n, 5 Mo.App. 59; Thorogood v. Robinson, 6 Q. B. [[[[[[Adol. and Ell.] 769. Respondent could recover only for conversion, if at all, in this case. Duncan v. Fisher, 18 Mo. 403; McCormack v. Gilliland, 76 Mo. 655; Kennedy v. Pruitt, 24 Mo.App. 414. The court erred in excluding the records of appellant (Rev. Stat. 1879, secs. 760, 936), and, although excluded, being preserved in the record, they are entitled to the same consideration here as if admitted. Martin v. Bonsack, 61 Mo. 556, 558-9; Rev. Stat. 1879, sec. 929. If any of the officers of appellant converted this property, and were attempting at the time to act for appellant, such act was ultra vires, and appellant cannot be held liable for it. Worley v. Columbia, 88 Mo. 106; Rowland v. City, 75 Mo. 134; Thomson v. City, 61 Mo. 282; Cheney v. Inhabitants, 60 Mo. 53; Green's Brice's Ultra Vires [2 Ed.] 550, 362, 363; Cooley on Torts, 119; Morawetz on Corporations [2 Ed,] secs. 392, 393, 580, 581, 730. If an officer of appellant had been attempting to hold this property for a debt due to it by Briggs, this would simply have been an illegal act on his part (Hensley v. Hartzell, 44 Mo. 372), and appellant would not have been liable for it. Sullivan v. Railroad, 88 Mo. 169.

H. M. WILCOX, for the respondent: " Where the sum recovered as damages was reduced by remittitur to an amount satisfactory to the judge who tried the cause, this court will not interfere." Lloyd v. Railroad, 53 Mo. 509; Sharpe v. Johnston, 76 Mo. 660; Cook v. Railroad, 63 Mo. 397. " A bailee or agent of another, who, after being apprised of the rights of the real owner, retains possession of the property, or of the proceeds of its sale, and refuses to deliver the same to such owner, is guilty of conversion." Dusky v. Rudder, 80 Mo. 400. " Any wrongful taking or assumption of a right to control or dispose of property, constitutes a conversion. Any wrongful act which negatives, or is inconsistent with, the plaintiff's right, is per se a conversion." Allen v. McMonagle, 77 Mo. 478; Rembaugh v. Phipps, 75 Mo. 422; Ireland v. Horseman, 65 Mo. 511; O'Donoghue v. Corby, 22 Mo. 393; Koch v. Branch, 44 Mo. 542; Culbertson v. Hill, 87 Mo. 553. The doctrine of ultra vires has no application in this case. 2 Waite's Actions and Defences, 337; Cooley on Torts, 119, 121; Boone on the Law of Corporations, sec. 78, notes, and cases cited; 1 Addison on Torts, 1118, 1119. " Corporations are liable for every wrong they commit, and in such cases the doctrine of ultra vires has no application." Bank v. Graham, 100 U.S. 702; Woodward v. Railroad, 85 Mo. 142; Boogher v. Ins. Co., 75 Mo. 319; Alexander v. Relfe, 74 Mo. 495; Johnson v. Dispatch Co., 65 Mo. 539; Perkins v. Railroad, 55 Mo. 201. The instructions of both appellant and respondent, when considered as an entirety, give the whole law of the case. McKeon v. Railroad, 43 Mo. 405.

OPINION

THOMPSON J.

This action was brought before a justice of the peace to recover damages for the conversion of a chest of carpenter's tools, alleged in the plaintiff's statement to be of the value of $41.85. On trial anew in the circuit court, the plaintiff gave evidence of the value of the tools and chest, item by item, which resulted in his conclusion that their value was forty dollars; which value must be reduced by his admission, on cross-examination, that he had valued the tools as though they were new, and that the difference between their value when new and their value at the time of the conversion " would not exceed five or ten dollars on all of them." If we are entitled to take the plaintiff's testimony where it is inexact most strongly against himself, the value of the property at the time of the conversion did not exceed thirty dollars. The court instructed the jury that, if they should find for the plaintiff, they should assess his damages at what the jury should believe, from the evidence, to be the market value of the chest and tools at the time when the plaintiff demanded them and the defendant refused them, with six per cent. interest from the date of the commencement of the action. The jury returned a verdict for the plaintiff in the sum of $93.30, more than double the value as claimed in the plaintiff's statement, and about three times the value as thus shown by the plaintiff's testimony. Of this amount the plaintiff, two days after the verdict, voluntarily remitted the sum of $50.05, and the court entered judgment for the residue, namely, $43.25. Afterwards the court required the plaintiff, as the condition of refusing a new trial, to remit the further sum of $12.20; so that judgment was finally entered for the sum of $31.05.

The plaintiff's evidence at the trial tended to show that one Briggs had a desk-room in the defendant's printing establishment, where he carried on the business of a publisher; that the plaintiff was in the employ of Briggs; that the plaintiff was the owner of this chest of tools, which was at Cincinnati; that the plaintiff had had it shipped to St. Louis; that, for the reason that Briggs was well known in St. Louis and the plaintiff not, the plaintiff had the tools shipped in the name of Briggs; that they arrived, with the address of Briggs marked upon the box; that Briggs procured the consent of the defendant to have the tools left in its printing establishment, where Briggs had his place of business at the time; that the plaintiff owned the chest and used the tools in repairing furniture while they were there; that Briggs afterward left the place, and that thereafter the plaintiff went there to get his tools, and was repelled by the defendant, one of its officers claiming that he knew nothing about the plaintiff--did not recognize him; that he sent an expressman with an order for this chest of tools, and its delivery was refused, on substantially the same ground, by an officer of the defendant; that the defendant caused the chest of tools, with certain property which had been left there by Briggs, to be carried by defendant's porter and deposited in the basement of the building; that the plaintiff and his attorney finally called upon the defendant, about six months after the plaintiff's first demand for the tools, and about a month before the bringing of the suit, and demanded them, and that their demand was again refused, on the ground that they did not know the plaintiff, and did not know where the tools were; that at this interview an officer of the defendant gave the plaintiff permission to look for the box, which the plaintiff did without finding it, for the reason, it would seem, that it had already been taken down into the basement--a fact of which he was ignorant. The plaintiff's testimony also was to the effect that he had offered to prove his title to the chest of tools by his own affidavit and by the statement of Mr. Briggs. The evidence of both parties was to the effect that, late in the fall, or in the winter, before the bringing of this action (which was brought May 21, 1886), Briggs had met one of the officers of the defendant, and had told him that the chest of tools belonged to the plaintiff and not to him, Briggs. It transpired, in the course of the evidence, that Briggs had left the place while being indebted to the defendant, though, it seems, not for rent, because the defendant's evidence was to the effect that Briggs was not its tenant, though he had a desk and did business there. All the evidence shows that the reiterated excuses of the defendant's officers for not delivering the chest of tools to the plaintiff were, that they did not know the plaintiff and that they wanted to see Briggs. They, on the other hand, claim in their testimony that they never gave Briggs permission to deposit the chest of tools in their building, and that they never refused to allow the plaintiff to take them away, provided he would satisfy them that he was the owner of them.

An analysis of the testimony leads indisputably to the following conclusions: (1) That the property in controversy belonged to the plaintiff; of this there is no dispute whatever. (2) That even if it had belonged to Briggs, the defendant has offered no evidence tending to show a state of facts which gave it any lien upon it or any right of detainer in respect of it whatever. (3) That the plaintiff had made repeated demands for it prior to the bringing of the action, which had been refused. (4) In addition to this there was no evidence tending to show that the defendant had, by officers or agents, assumed at plaintiff's request any duty of care in respect of it, and defendant's testimony is to the effect that it had not done this. The most that the evidence under this head tends to show is, that the defendant...