Sikes v. Freeman

• Decision Date: 25 June 1918
• Docket Number: No. 2245.,2245.
• Parties: SIKES v. FREEMAN.
• Court: Missouri Court of Appeals

204 S.W. 948

SIKES v. FREEMAN.

No. 2245.

Spring field Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Mississippi County ; Frank Kelly, Judge.

Action by W. H. Sikes against C. C. Freeman. Judgment for plaintiff, and defendant appeals. Affirmed.

C. N. Mozely and Harry C. Blanton, both of Benton, and M. G. Gresham, of Sikeston, for appellant. Ralph E. Bailey, of Sikeston, and Gallivan & Finch, of New Madrid, for respondent.

BRADLEY, J.

Action in replevin to recover 6,243 bushels and 32 pounds of wheat found to be of" the value of $12,799.24. The wheat was delivered to plaintiff under the writ, and he had possession at the time of the trial. The answer, among other allegations, denies that plaintiff was the owner or entitled to the possession, and asks for $5,000 damages for the alleged wrongful taking and detention, but does not plead ownership in defendant or ask for the return of the wheat. Plaintiff recovered below, and defendant, after the usual motions, appealed. On the date mentioned therein, plaintiff and defendant entered into a contract as follows:

"This contract or agreement entered into this the 25th day of January, 1917, by and between C. C. Freeman of Sikeston, Missouri, party of the first part, and W. H. Sikes of Sikeston, Missouri, party of the second part, witnesseth: The party of the first part agrees to sell, and does hereby sell to the party of the second part his entire 1917 wheat crop grown on about three hundred and sixty-five acres of land, with the exception of four hundred bushels to be saved out for seed. This wheat located on the Hunter farm about four miles south of Sikeston, Missouri. The party of the second part agrees to pay for this wheat $1.30 per bushel, basis of No. 2 wheat, to be delivered at the warehouse of the Sikes-McMullin Grain Company at Juanita, Mo., said wheat to be delivered some time during the months of June or July, 1917. Should the party of the first part fail to deliver this wheat within the months of June or July, 1917, the party of the second part reserves the right and option to either extend the time for delivery or cancel the contract. This wheat is to be paid for in full by the party of the second part, when delivered. The party of the first part hereby acknowledges receipt of one dollar cash in hand, paid on this contract. This contract executed the day and date above named."

Defendant failed to deliver any wheat, but was hauling it away and disposing of it, and plaintiff replevined. The evidence and offerings disclose these defenses: (1) That a third party, one M. D. Atherton, was the owner of one-half of the wheat, and was such owner on the date of the contract ; (2) that plaintiff's action is premature, in that the time for delivery had not expired when suit was commenced; (3) that the grading and the separation of the 400 bushels of seed wheat remained to be done, and therefore no title passed by virtue of the contract ; (4) that the contract is unilateral, and may be avoided at the option of either party.

When this case was argued we had some doubt about this court having jurisdiction. The statute (section 3937, R. S. 1909) limits our jurisdiction respecting the amount involved to $7,500, and section 3938 provides that:

"In the event of any case being sent improperly on appeal or writ of error from a lower court to either of the Courts of Appeal when the same should have been sent to the Supreme Court, it shall be the duty of such Court of Appeals, immediately on such fact coming to its attention, to order the transfer of the same to the Supreme Court."

Neither side raises any question of jurisdiction, but if we have no jurisdiction, it is our duty to transfer the cause regardless of whether such question be raised. Bingaman v. Hannah, 171 Mo. App. 186, 156 S. W. 496.

The wheat in controversy had not been paid for at the time of the trial, because defendant refused to accept payment on the basis of the contract price, to wit, $1.30 per bushel. The evidence showed that the wheat was somewhat damaged, but was of the value of $2.05 per bushel or $12,799.24. Plaintiff at all times was willing to pay the contract price of $1.30 per bushel or $8,116.59. One dollar was paid when the contract was executed, and the jury found defendant's interest in the wheat to be of the value of $8,115.59. Plaintiff, during the trial, made a tender of $8,115.59, and defendant declined to accept, so the "amount in dispute" is in fact the difference between $12,799.24, and $8,115.59 or $4,683.65.

As we have noted defendant in his answer did not claim the wheat or ask for its return, but after the commencement of the trial asked leave to amend, which proposed amendment included, among other things, a prayer for the return of the wheat, but did not contain any claim of ownership. The court declined to permit the amendment. In this situation had defendant recovered, his judgment could have only been general, which would have carried the costs, and left the value of the wheat to be determined in other litigation. Cable v. Duke, 208 Mo. 557, 106 S. W. 643. The amount in dispute must be determined by an examination of the entire record (Vanderberg v. Gas Co., 199 Mo. 455, 97 S. W. 908), and from the entire record we think that the appeal was properly lodged in this court, and have made these observations upon the subject of jurisdiction because from a statement of the facts, without some further explanation, it might appear that we had no jurisdiction to determine the cause on its merits.

1. As to the alleged ownership of a third party defendant offered to prove that, at the time the contract was entered into, Atherton owned a one-half interest in the wheat, but an objection to this offer was sustained on the ground that, defendant having represented himself as the owner of the wheat in controversy, and plaintiff, relying upon such representation, purchased the wheat, defendant is estopped from denying ownership at the time of the sale, and is estopped from setting up title in a third party. The general rule in replevin is that the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary's, and that he may show in defense title or right of possession in a third person (Moriund v. Johnson, 140 Mo. App. 345, 124 S. W. 80), but this rule has no application where the defendant has conveyed the title upon which plaintiff is relying to recover ; for in such case to permit defendant to set up that defense would be in contradiction of his implied warranty.

We think that Gottschalk v. Klinger, 33 Mo. App. 410, in point and decisive of the question. There plaintiff proceeded in replevin to recover certain property under a chattel mortgage given by defendant. One of the defenses was that defendant had given a prior mortgage on same property to a third person. The court (33 Mo. App. loc. cit. 416), after quoting from Adams v. Wildes, 107 Mass. 123, and concerning that case said:

"The underlying principle of this decision is, that a vendor is estopped from setting up title in a third party, where the assertion of such title is equivalent to the admission of the breach on his part of an implied warranty of title. That in a contest between himself and his vendee, he should not now be heard to say that he had no title at the date of the sale, although at that date he asserted to his vendee that he had good title."

Analogous in principle and to the same effect are Pulliam v. Burlingame, 81 Mo. 111, 51 Am. Rep. 229; Acton v. Dooley, 74 Mo. 63 ; Snodgrass v. Emery, 66 Mo. App. 462.

At the time that defendant in the instant case sold the wheat to plaintiff no mention was made of any other ownership except defendant, and no such claim was made until the time for delivery drew near. The record shows that the wheat when replevined by the sheriff was in the possession of defendant. To permit defendant to set up the defense of title in a third person would be to permit him to confess a breach of his implied warranty that he was possessed of the title at the time of the sale, and that lie had the right to convey. We hold that defendant under the facts is estopped from setting up as a defense that title to the wheat, or any portion thereof, was in a third person, and that the trial court committed no error in declining to hear evidence on that defense.

2. Was plaintiff's action commenced prematurely? We think not. It is true that the time in which delivery might be made had not expired when plaintiff commenced his suit, yet on the other hand defendant had breached his contract by hauling a portion of the wheat away and disposing of it. Plaintiff demanded the wheat before ha commenced proceedings, but defendant refused to comply with the demand, but stated that on...