Stout v. Fultz

• Decision Date: 13 March 1906
• Citation: Stout v. Fultz, 117 Mo. App. 573, 93 S.W. 919 (Mo. App. 1906)
• Parties: STOUT v. FULTZ.
• Court: Missouri Court of Appeals

93 S.W. 919

117 Mo. App. 573

STOUT v. FULTZ.

St. Louis Court of Appeals. Missouri.

March 13, 1906.

TROVER AND CONVERSION—RIGHT OF ACTION.

Where plaintiff's cow got into defendant's field over a division fence, not a lawful fence, and the defendant locked her up and refused to turn her out until plaintiff paid damages, but afterwards made a settlement with plaintiff and turned the cow out on his written order, he is not liable to plaintiff for the value of the cow.

Appeal from Circuit Court, Ripley County; J. C. Shepard, Judge.

Action by Grant Stout against J. M. Fultz. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Chas. D. Yancey, for appellant. Thos. M. Lane, for respondent.

BLAND, P. J.

Without giving a bond, the plaintiff brought his suit in replevin before a justice of the peace to recover the value of a one-horned milch cow. He lost in the justice court, and appealed to the circuit court, where, on a trial anew to the court sitting as a jury, he was again mulcted in the costs. Being doubly aggrieved by his unsuccessful efforts to sell the defendant his cow through the medium of a lawsuit, plaintiff has come to us by the usual route to have the rulings against him in the circuit court reviewed.

Briefly stated, defendant and one Patterson owned adjoining fields separated by an old worm fence less than five feet high and without locks at the corners. Patterson's field was in meadow and was rented to plaintiff. Defendant's field was in corn and "truck patches." Plaintiff's horses, running on the meadow, got over the insufficient fence into defendant's cornfield and did damage. Then plaintiff's one-horned cow came along and got over into defendant's corn and proceeded to bite it off and destroy it. Defendant drove her into his barn and locked her up. Plaintiff learned that his cow was locked up in defendant's barn, went to the barn, and demanded that defendant turn the cow out. Defendant refused to comply unless plaintiff would first pay him the damage to his growing crops, caused by the horses and cow. The parties then agreed to see a justice of the peace and learn of him whether or not defendant had the right to impound the cow for the payment of his damages, and the justice advised that he had no right to hold the cow. It seems the visit to the justice was on July 29, 1904, at which time defendant gave the plaintiff the following writing: "Settled with Grant Stout on all accounts in full. Signed, J. M. Fultz." Two...