Speak v. Ely & Walker Dry Goods Co.

• Decision Date: 04 May 1886
• Citation: 22 Mo.App. 122
• Parties: B. F. SPEAK, Respondent, v. ELY & WALKER DRY GOODS COMPANY, Appellant.
• Court: Missouri Court of Appeals

22 Mo.App. 122

B. F. SPEAK, Respondent,

v.ELY & WALKER DRY GOODS COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

May 4, 1886.

APPEAL from the Cape Girardeau Court of Common Pleas, ROBERT L. WILSON, Judge.

Reversed.

WILLIAM B. THOMPSON, for the appellant.

THOMPSON, J., delivered the opinion of the court.

The theory on which this case was tried will appear by the two instructions on which the court put it to the jury. The first was requested by the plaintiff, and was as follows: “The court instructs you that if you believe from the evidence that the defendant unlawfully took and converted to its own use the property of plaintiff described in the petition, you should find for the plaintiff and assess his damages at the reasonable market value of such goods at the place and time the conversion took place, with six per cent. interest from the date of conversion.” The second was given at the request of the defendant, and was as follows: “The court instructs the jury that if they believe from the evidence that the plaintiff and defendant, through one of its members, did, in the month of April, 1884, make an agreement, whereby plaintiff was to deliver to defendant the goods in controversy, and that plaintiff agreed to take therefore the sum of eight hundred and forty-one dollars, to be entered as a credit on three notes held by defendant against plaintiff, and if they further believe that said goods were delivered by plaintiff and received by defendant, according to said agreement, and that the said sum of eight hundred and forty-one dollars was credited by defendant upon said notes, then the jury will find for the defendant.” As the jury found for the plaintiff in the sum of five hundred dollars, they must have found the existence of the state of facts on which the former of the above instructions was predicated.

What is an unlawful conversion is a question of law where the facts are found or conceded. In instructing a jury it is error for the court to submit questions of law to them for their determination. Fugate v. Carter, 6 Mo. 267, 273; Hickey v. Ryan, 15 Mo. 63, 67. The only case in which such an error will not work a reversal of the judgment is where the question of law is what is called an abstract proposition not relevant to any evidence in the case, and, therefore, immaterial and harmless, or where the jury have manifestly decided the question rightly. In the above instruction, which is not based upon any hypothetical state of facts disclosed by the evidence, the court submitted to the jury the naked question of law, whether the defendant had or had not been guilty of an unlawful conversion of the plaintiff's goods; and as it is not manifest that the jury had decided the question rightly, but manifest that they had decided it wrongly, this is sufficient, without more, to require a reversal of the judgment.

In finding for the plaintiff the jury must have found in favor of the hypothesis embraced in the former of the above instructions. We can discover no substantial evidence in the record to support such an hypothesis. The petition is drawn upon the theory of recovering damages for the fraudulent conversion of the plaintiff's goods. It recites, in substance, that the plaintiff was indebted to the defendant in the sum of $1,040, and agreed with the defendant that the defendant might take out of the plaintiff's place of business goods enough to satisfy this indebtedness, at their full value, and no more; that, contrary to this agreement and without the knowledge or consent of the plaintiff, the defendant fraudulently took out of the plaintiff's store-house a quantity of goods largely in excess of what was sufficient to satisfy the above indebtedness and carried them off and converted them to its own use. The answer, after a general denial, states the fact of the indebtedness of the plaintiff to the defendant in a sum of $1,041, and charges that it was agreed between the plaintiff and the defendant that the plaintiff should turn over the dry goods in his store in payment of...