Watson v. Harmon

• Decision Date: 30 April 1885
• Citation: 85 Mo. 443
• Parties: WATSON, Appellant, v. HARMON.
• Court: Missouri Supreme Court

85 Mo. 443

WATSON, Appellant,

v.HARMON.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Platte Circuit Court.--HON. G. W. DUNN, Judge.

REVERSED.

Spencer & Hall and Doniphan & Reed for appellant.

(1) The action of the court in striking out of plaintiff's instruction the words “with interest on such sum at six per cent. per annum from the time of such conversion” was error. The law allows interest where property is converted. Sutherland on Damages, 174; State, etc., v. Smith, 31 Mo. 566; Walker v. Borland, 21 Mo. 289. (2) The trial court should have set aside the verdict. Nicholson v. Couch, 72 Mo. 209; Faughman v. Heisey, 43 Mo. 122; McKay v. Underwood, 47 Mo. 185; Price v. Evans, 49 Mo. 396; Alderman v. Cox, 74 Mo. 78.

Ramey & Brown for respondent.

The plaintiff cannot complain of the verdict. His contract with defendant was a collusive one to defraud his creditors. Bump on Fraudulent Conveyances (3 Ed.) 443, 444 and 456; Hamilton v. Scull, 25 Mo. 166.

PER CURIAM.

This is an action for conversion. The petition alleges, in substance, that plaintiff was merchandizing, and had in his possession as owner a large quantity of goods of the value of $4,800, and notes and accounts aggregating $5,724, making a total valuation of assets of $11,563. That on the thirtieth day of March, 1877, the defendant forcibly entered the plaintiff's store and took and converted the said property to his use, wherefore judgment is asked for said sum of $11,563, and interest thereon from the day of said conversion. The answer tendered the general issue. At the trial before a jury the plaintiff testified that he owned the property and put it in the name of defendant; that he was in debt about $12,000, and that he carried on the business in the name of and put the property in defendant's name, to put it beyond the reach of his said creditors; that the goods originally belonged to defendant, and that he purchased the stock and continued to do business in defendant's name, and this by agreement with defendant, and that defendant unlawfully and wrongfully and against plaintiff's consent took the goods and property mentioned in the petition and converted them to his own use.

Defendant introduced evidence tending to show he owned the store, goods, notes and accounts and that they were worth much less, but the lowest value fixed by any witness was the sum of $3,300.

Allen Dunlap, a witness offered by defendant, stated that he had charge of the goods, notes and accounts, and that the goods were worth only fifty cents of the invoiced price of $4,880.18. Plaintiff on cross-examination asked him if the defendant did not realize out of the goods the full invoice price. The court refused to permit him to answer the question; and plaintiff offered to prove that defendant realized the full invoice price, but the court excluded the testimony, to which plaintiff at the time excepted.

The plaintiff asked the following instruction:

“1. The court instructs the jury on the part of the plaintiff, that if they believe, from the evidence, that on or about the thirtieth day of March, 1877, at De Kalb, in the county of Buchanan, Mo., the plaintiff was the owner of and in the lawful possession of the personal property mentioned in the petition, that is to say, of goods (merchandise) of the value of $4,888.18 or any less sum, and of notes of the value of $4,997.86, or any less sum, and of accounts of the value of $1,756.55, or any less sum, and that at the time and place above mentioned the defendant wrongfully and unlawfully, and against plaintiff's consent, took from plaintiff and from his possession the said goods and merchandise and notes and accounts, or any part thereof, and converted the same to his own use and benefit, they will find for plaintiff, and assess his damages at such sum as they may find, from the evidence, the said property was worth at the time and place of such conversion, with interest on such sum at six per cent. per annum from the time of such conversion.”

The court struck out of said instruction the words, “with interest on such sum at six per cent. per annum from the time of such conversion,” and gave the balance of it.

The only material instruction given on behalf of defendant is as follows:

“That the burden of proving that the property in question, on the thirtieth day of March, 1877, was the sole property of the plaintiff, and that he was deprived of the possession thereof by the defendant and that defendant obtained such possession against the wishes and consent of the plaintiff, devolves upon the plaintiff, and unless the jury are satisfied, from the evidence, of such facts, they must find for the defendant.”

The jury returned the following verdict: “We, the jury, find for the plaintiff and assess his damages at one dollar.” After ineffectual motions for new trial and in arrest, the plaintiff has appealed from the judgment entered on said verdict.

I. The verdict of the jury in this case is most extraordinary. They found the issues for the plaintiff. The issues involved the ownership of the property in question. By the verdict the jury found the property belonged to the plaintiff. The next issue involved was, did ...