Westbrook v. Mize

• Decision Date: 07 May 1886
• Citation: 10 P. 881,35 Kan. 299
• Parties: C. E. WESTBROOK v. J. S. MIZE
• Court: Kansas Supreme Court

10 P. 881

35 Kan. 299

C. E. WESTBROOK v. J. S. MIZE

Supreme Court of Kansas

May 7, 1886

Error from Marion District Court.

THE opinion states the nature of the action and the facts. At the February Term, 1884, the court, upon the motion of the defendant Mize, rendered judgment against the plaintiff upon the pleadings in the cause. This ruling plaintiff brings here for review.

Doster & Bogle, for plaintiff in error.

J. Ware Butterfield, and Scott & Lynn, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is an action for the conversion of a quantity of hay belonging to the plaintiff. After the plaintiff's reply had been filed, the court, upon motion of the defendant, rendered judgement against the plaintiff upon the pleadings in the cause, and this is the ruling complained of here. The only question for our decision, then, arises upon the interpretation and effect of the pleadings. It was alleged in the petition that on November 14, 1882, the defendant, J. S Mize, wrongfully carried away and converted to his own use sixty tons of hay belonging to the plaintiff, which was of the value of $ 3 per ton. The defendant answered that the hay was seized as the property of one Henry J. Tucker, under an attachment issued in action brought by C. F. Brandner against the said Tucker, in which action a judgement was rendered in favor of Brandner, and the attached hay was ordered to be sold as the property of Tucker to satisfy the judgement. In pursuance of that order and the direction of Brandner, the defendant advertised for sale the sixty tons of hay which he had possession, and on November 9, 1882, sold the same to Brandner; but when the hay came to be delivered to the purchaser on November 14, 1882, there remained but about thirteen tons thereof. The remainder of it, as was alleged, had been hauled away and used by Westbrook, the plaintiff in this action. As a further defense, the defendant alleged that on November 14 1882, C. E. Westbrook began an action against Brandner to recover for thirty tons of hay of the alleged value of $ 3 per ton, claimed by Westbrook to have been wrongfully carried away by Brandner, and which was the same hay in controversy in this action; that the cause was tried on March 7, 1883, and resulted in a judgment in favor of Westbrook and against Brandner for the sum of $ 81, damages, with interest from the 14th day of November, 1882, and the costs of suit; that on April 14th, 1883, Brandner paid that judgment in full, and on April 17th, 1883, the amount thereof was accepted and receipted for by the plaintiff Westbrook. The plaintiff replied that the hay mentioned in defendant's answer was, at the time of the pretended levy and sale thereof by the defendant in his capacity as constable, the property of the plaintiff, of which fact he had full knowledge when the levy and sale were made, and he averred that the defendant and C. F. Brandner, who also knew that the hay was the property of the plaintiff, colluded together for the purpose of injuring the plaintiff and depriving him of his property, and so colluding together, caused the levy and sale of the hay as the property of Henry J. Tucker. In further reply to the answer of the defendant, the plaintiff alleged that the judgment mentioned in his answer against said C. F. Brandner was rendered "under chapter 113 of the Compiled Laws of 1879, for treble the actual damages sustained by said plaintiff on account of the wrongful act of said Brandner in carrying away from section one, township twenty-two, range four, in Marion county, nine tons of hay in controversy in this suit, and no more, the same being only a portion of the hay which said Brandner and said defendant had, as hereinbefore alleged, wrongfully levied upon and sold and converted to their own use, and by reason of said fact, was not a payment for the full amount of damages which the said plaintiff sustained by the wrongful and tortious act of the said Brandner and said defendant."

We are of opinion that the acts of the plaintiff, as stated and admitted in the foregoing pleadings barred the further prosecution of his suit. By his reply it appears that the defendant and C. F. Brandner conspired together to wrongfully deprive the plaintiff of his property. The tortious taking of the sixty tons of hay was the...