Wittling v. Schreiber

• Decision Date: 02 April 1918
• Docket Number: No. 15016.,15016.
• Citation: 202 S.W. 418
• Parties: WITTLING v. SCHREIBER.
• Court: Missouri Court of Appeals

202 S.W. 418

WITTLING v. SCHREIBER.

No. 15016.

St. Louis Court of Appeals. Missouri.

Argued and Submitted March 7, 1918.

Opinion Filed April 2, 1918.

Rehearing Denied April 17, 1918.

Appeal from St. Louis Circuit Court; Gustavus A. Wurdeman, Judge.

"Not to be officially published."

Action by Joseph Wittling against William Schreiber. From judgment for defendant in circuit court, after appeal from judgment for plaintiff in justice court, plaintiff appeals. Reversed and remanded.

Robt. W. Hall, of St. Louis, for appellant. Schooley & Mooney, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff, appellant here, commenced his action in replevin before-a justice of the peace of St. Louis County, filing his petition, verified by affidavit, in which he claimed he was lawfully entitled to the possession of certain personal property described, consisting of a two and a half horse power gasoline engine, scale and other appliances, used in putting up or manufacturing a "patent improved lubricating packing," all of which is averred to be of the value of $200.50. Averring that it is wrongfully detained by defendant and had not been seized under any process, etc., plaintiff demands judgment for the recovery of the property, or its value, and $99.50 for its wrongful taking and detention.

The defendant, by way of answer filed a general denial of each and every allegation in the petition contained.

The action, it appears, was commenced without filing a bond.

Plaintiff prevailing before the justice, from which the defendant appealed to the circuit court, where on a trial before the court, a jury having been waived, the court found in favor of the defendant and rendered judgment for the return of the property, or its value, placed at $100, and for one cent damages. From this judgment the plaintiff has duly appealed to our court.

At the trial in the circuit court plaintiff asked to amend his petition by inserting in it that he was the owner of the property, the statement filed before the justice merely averring that he was lawfully entitled to its possession, but the court refused to allow the amendment, plaintiff duly excepting.

The testimony of the plaintiff was to the effect that he had purchased the greater part of the property from a Mrs. Morrison when he first entered upon the business, afterwards buying an engine and some other things needed in the business, all of which he testified he had purchased and paid for. Plaintiff further testified that he had a receipt from Mrs. Morrison showing the purchase of the goods, tools and machinery from her and that appears to have been introduced in evidence but was not in the abstract, and that this list included all the tools and machinery described in his petition, except the gasoline engine and the scale. As to this gasoline engine it appeared that the defendant, at the request of plaintiff, advanced the price, $50, for it in the first place but that afterwards the plaintiff had repaid this $50 to the wife of defendant, defendant admitting that his wife had received and deposited this amount in bank to the account of himself and wife. It appears that plaintiff had not entered upon the purchase of this machinery from Mrs. Morrison until he had arranged with the defendant, who owns a farm in St. Louis County, to go into business with him and to that end enlarge a building which defendant had on his property and which had been used as a rope walk, so as to fit it to carry on this increased business and install this machinery and operate it. According to plaintiff he told defendant that he would want a building or shed about 100 feet long, and defendant said that he could easily put that up; would have to add about 60 feet more to the building he had, and told plaintiff he could have it put in in a couple of weeks. According to plaintiff, defendant proposed that they go into partnership in carrying on the business, each owning half, but this, plaintiff, according to his testimony, declined, saying he would rather take the business himself as it was a small business and all he could do would be to give defendant a reasonable rent for the premises until he found out what he could do, and that he would give defendant, by way of rental, a cent a pound on all the goods they manufactured, which would average seven or eight dollars a month. The machinery was purchased by plaintiff and moved on to the defendant's premises and defendant enlarged the building as agreed, and together they set up the machinery and entered upon the prosecution of the business. This was sometime early in June, the machinery being set up about the pith of that month. After the business had been running some time, according to plaintiff, about July 25th, he offered to pay the defendant the rental as agreed upon. Defendant, however, refused to accept any money from him, although on that and other occasions he had offered to pay rental but defendant had always declined it; that on August 3d, he offered him $25, which...