Southwestern Port Huron Co. v. Cobble

• Decision Date: 30 April 1907
• Parties: SOUTHWESTERN PORT HURON CO. v. COBBLE.
• Court: Missouri Court of Appeals

102 S.W. 9

124 Mo. A. 647

SOUTHWESTERN PORT HURON CO. v. COBBLE.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

1. TROVER AND CONVERSION—EVIDENCE.

In an action for trover for the conversion of machinery, evidence examined, and held to sustain a verdict for defendant.

2. SAME.

In order to sustain an action for conversion of machinery, where defendant had lawful possession, plaintiff must prove actual use of machinery by the defendant, or a demand and refusal.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by the Southwestern Port Huron Company against George W. Cobble for conversion. From a judgment for defendant, plaintiff appeals. Affirmed.

W. H. Miller, for appellant.

GOODE, J.

On June 3, 1903, the Port Huron Company sold and delivered to defendant a 16 horse power traction engine, for $1,500. Defendant was to pay for it by executing three promissory notes for $225 each, falling due successively for three years, and turning over to the company two Harrison traction engines and one Advance separator. In order to distinguish the engine bought by defendant in the first place, from the two engines he was to deliver in part payment of it and another engine subsequently bought by him, we will designate the first one as No. 2,176, which was in truth the number of it. This engine was in bad order when delivered to defendant, and a dispute arose between him and the company from whom he had bought, and was continued between him and the plaintiff company, which, in August, 1903, succeeded to the rights of the Port Huron Company. Plaintiff's name, as will be observed, is the Southwestern Port Huron Company. The dispute was adjusted December 3, 1903, by a written contract reciting the facts of the sale of the engine No. 2,176; that defendant was to pay $1,500 for it, partly in notes amounting to $675, and the balance in two Harrison traction engines and one Advance separator; that differences had arisen relative to the guaranty of engine No. 2,176, the notes defendant gave, and the further carrying out of the contract; that, to settle the differences between the parties, it was agreed plaintiff should take engine No. 2,176 to Fruitland, and have the same put in good repair by McNeely Bros., machinists of that place, within 60 days, and, when so repaired and put in good order, should return the same to defendant at his mill in Cape Girardeau county; that, when said engine No. 2,176 was repaired, it should be able to develop a horse power equal to that of other engines of the same size; that defendant should have the right to try the same for one day to see if it would work to his satisfaction, or, failing to do this, some disinterested party should be called in to test it; that defendant should pay his notes as they became due, and on or before May 1, 1904, deliver free of charge, at Fruitland, Mo., the two Harrison engines and the Advance separator. It was further provided that the conditions of the contract to be performed by plaintiff should be precedent to the performance by defendant of what he undertook to do. The testimony goes to show that, after engine No. 2,176 had been repaired by McNeely Bros., it still failed to work well or give satisfaction to defendant; but, instead of calling some third party to test it, as had been agreed, the parties entered into another written arrangement, as follows: "May 10, 1904. When the Southwestern Port Huron Co. delivers to me at Jackson, Mo., by express or freight, prepaid, one intermediate gear, one front set of new grates, and one steering worm for my 16 horse power Port Huron engine, I will be perfectly satisfied with the above-mentioned engine, and will pay my notes and deliver to McNeely Bros., at Fruitland, Mo., the two engines and separator given to the Port Huron Co., as part payment for said Port Huron engine. C. W. Cobble."

Cobble (defendant) did not, after the execution of the last agreement, deliver the Harrison engines and Advance separator at Fruitland, in part payment for engine No. 2,176. He contended that said engine still failed to give satisfaction, and that plaintiff had not carried out its contract regarding it. A third and verbal arrangement was made between plaintiff and defendant, by which a new engine was sold to defendant for $1,750. The consideration for this engine, which we shall style the "New" one, was the return to plaintiff of engine No. 2,176, payment of the notes originally given, and the turning over to plai...