Warrington v. Kallauner

• Decision Date: 11 January 1909
• Citation: Warrington v. Kallauner, 115 S.W. 492, 135 Mo. App. 5 (Mo. App. 1909)
• Parties: WARRINGTON v. KALLAUNER.
• Court: Missouri Court of Appeals

115 S.W. 492

135 Mo. App. 5

WARRINGTON v. KALLAUNER.

Kansas City Court of Appeals. Missouri.

January 11, 1909.

1. TRIAL (§ 253) — INSTRUCTIONS — IGNORING ISSUES.

In an action for conversion, where defendant claimed to have held the property as pledgee, and plaintiff claimed that it was merely loaned to defendant, who refused to return it, an instruction to find for plaintiff if he loaned the property to defendant, and defendant converted the same to his own use and has not paid plaintiff therefor, is erroneous, as it ignores the defense that the property was held as a pledge.

2. TRIAL (§ 255) — INSTRUCTIONS — NECESSITY FOR.

In the absence of a request in a civil action, the court is not bound to give an instruction in a party's behalf.

3. TRIAL (§ 272) — INSTRUCTIONS — WAIVER OF OBJECTION.

An objection to an erroneous instruction is not waived by failure to request an instruction in relation to the subject-matter.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by S. S. Warrington against John Kallauner. From a judgment for plaintiff, defendant appeals. Reversed.

E. M. Swartz, for appellant. Kendall B. Randolph, for respondent.

BROADDUS, P. J.

The plaintiff sues to recover the value of a house-moving outfit of the alleged value of $250. It appears that defendant employed plaintiff to move a certain house, for which he was to pay him $250, and that the outfit was left by plaintiff in defendant's possession, who sold the same, and converted the proceeds to his own use. The defendant pleads several defenses, viz.: That he advanced to plaintiff $100 to enable him to carry on the work; that he advanced him $10 to pay the license fee to the city of St. Joseph for a permit to remove the house; that he advanced $115 to pay the wages of plaintiff's workmen; that a part of the material plaintiff used in the work was borrowed from one Kepler, and defendant was plaintiff's security to the effect that he would pay the said Kepler for all damage done to the said material, and that plaintiff did damage to the same to the extent of $45, which sum plaintiff paid to the said Kepler for such damage; that defendant holds said outfit as part security for plaintiff's failure to complete the removal of said house; and that he was further damaged in the sum of $100 by reason of the damage done to said house, occasioned by the negligent manner in which plaintiff undertook to move it. The trial resulted in judgment for the plaintiff in...