Walker v. Lewis
| Citation | 124 S.W. 567,140 Mo.App. 26 |
| Parties | MARY V. WALKER et al., Respondents, v. HUGH M. LEWIS, Appellant |
| Decision Date | 10 January 1910 |
| Court | Court of Appeals of Kansas |
Appeal from the Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
Judgment affirmed.
Mytton & Parkinson for appellant.
(1) The instruction in the nature of a demurrer offered by the defendant at the conclusion of the plaintiffs' evidence and the instruction offered by the defendant in the nature of a demurrer at the conclusion of all the testimony in the case should have been given. There was no evidence to sustain the allegations of the petition that the defendant, Lewis, sold or disposed of or converted to his own use the property sued for. Walsh v. Sichler, 20 Mo.App. 374; Walsh v Sichler, 20 Mo.App. 374. (2) Instruction number one given in behalf of the plaintiffs is erroneous in that it authorizes a recovery by both of the plaintiffs if the jury believe that the defendant sold or disposed of the property sued for without authority of the plaintiffs or converted said property to his own use. There was absolutely no evidence that Lewis ever sold the property and there is absolutely no evidence that he ever used the property and the evidence of the plaintiffs themselves demonstrates that he contended that he had no title to the property, no right to possession of the property and nothing to do with it and had no claim over it. Walsh v. Sichler, 20 Mo.App. 374. (3) This being an action to determine a property right and of the same nature as a replevin suit. Instruction number two is erroneous for the reason that it permits a verdict in favor of Mrs. Walker alone although the petition which is binding upon her avers that she and her coplaintiff, Henry Walker are the joint owners of the property sued for. Butler v Boynton, 117 Mo. 467; Meglin v. Stewart, 6 Mo.App. 498; Little v. Harrington, 71 Mo. 390; Upham v. Allen, 76 Mo.App. 390; Seay v. Sanders, 88 Mo.App. 478.
Charles M. Street for respondent.
Sherman v. Printing Co., 29 Mo.App. 38. Instruction number one properly submitted the question of unlawful conversion to the jury. The jury were instructed that if they believed the property in controversy was loaned to defendant, and that he sold or disposed of the same without authority of the plaintiffs or converted the property to his own use, any one of these facts amounted to an "unlawful conversion" of the property. Speak v. Ely & Walker D. G. Co., 22 Mo.App. 122. Instruction number two was proper. Pettingill v. Jones, 30 Mo.App. 284. And the judgment on the verdict against plaintiff, Henry Walker, and in favor of plaintiff, Mrs. Walker, was proper.
The petition alleges that plaintiffs "are and at all times hereinafter stated were the owners of one runabout wagon, one set of single harness, one bridle, one saddle and one saddle blanket. That on or about the 10th day of March, 1905, they loaned and delivered to the defendant said property for the purpose of assisting him in the sale of a horse belonging to the plaintiffs, the said defendant desiring to use said property in driving and showing said horse to prospective purchasers. Then follows the allegation that defendant converted the property to his own use and judgment is prayed for the value of the property. The answer is a general denial. A trial to a jury resulted in a verdict for the plaintiff, Mary V. Walker, for $ 100. The jury found that her co-plaintiff had no interest in the cause of action. Accordingly, judgment was entered for Mrs. Walker, and Henry was dismissed. Defendant appealed.
Counsel for defendant earnestly contend that the court should have given the jury a peremptory instruction to find for the defendant for the reason that "there was no evidence to sustain the allegations of the petition that the defendant Lewis sold or disposed of or converted to his own use the property sued for." We shall not recite the details of the evidence. Counsel attack the credibility of the testimony of plaintiffs and it appears that their account of the transaction is contradicted by very strong testimony, some of which is from disinterested witnesses, but there is nothing in it to overtax credulity. It is consistent and we must say it is substantial. As we have often declared, we do not weigh evidence, and where we find that of the plaintiff to be substantial, we accept it as true in our consideration of the demurrer to the evidence.
Material facts disclosed by the evidence of plaintiffs are as follows: Mrs. Walker owned a driving horse and the property in controversy. She had bought the property chiefly for the use of her son, the plaintiff Henry. Defendant was a liveryman in St. Joseph and plaintiffs had kept the horse at his barn. A short time before the beginning of the transaction in controversy, she began keeping the horse and rig in her own barn. She concluded to dispose of the property and conversed with defendant by telephone about selling the horse for her. Defendant agreed to sell the horse and said he would send a man after it. Shortly after this conversation, a nephew of defendant called at Mrs. Walker's house to get the horse, stating he had been sent by defendant. He asked and was given permission to take the wagon, harness, saddle, etc., for use in showing the horse. The nephew afterward sold the horse and turned the proceeds over to plaintiffs, but he failed to return the other property. Later plaintiffs asked defendant to return the property and he promised to do so, giving as an excuse for his failure to return it that he had been very busy. A lawyer was then employed by plaintiffs and oral demand was made on defendant for the property, but he denied that he had ever received it or had it in charge. This suit followed.
Defendant relies on the case of Walsh v. Sichler, 20 Mo.App. 374, to support his contention that no case was made against him by the evidence. In that case it is said: "I understand the law to be, that to maintain the action of trover, there must be either a taking from the owner or an unwarranted assumption of control and ownership over the thing, or an alleged use or abuse of it, or proof of demand, and refusal to surrender." It may be true, as defendant says, that he did not touch...
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