20 Mo. App. 107 | Mo. Ct. App. | 1885
delivered the opinion of the court. •
This was an action of replevin for certain mules, harness, and wagons. The plaintiff ’ s claim of title depended upon two instruments: 1. A bill of sale intended as a mortgage; 2. A mortgage made by the defendant to certain third persons, and by the latter assigned to the plaintiff. The plaintiff had a verdict and judgment for the property embraced in the second of these instruments, and as to that part of the judgment there is no controversy. In respect of the property mentioned in the bill of sale, the defendant had a verdict and judgment in the usual statutory form, assessing its value at one hundred and seventy-five dollars, and assessing damages for its detention at three hundred dollars.
The appellant raises two questions only:
I. Whether the plaintiff is estopped from recovering in this action the property embraced in the bill of sale, by reason of the fact that, prior to the commencement of this action, the plaintiff had sued out an attachment against the defendant, and had caused it to be levied upon such property as the property of the defendant. The plaintiff offered to show that this levy had been released prior to the seizure of the property in the present replevin suit; but the court on objection from the defendant, excluded the evidence and the plaintiff excepted. The plaintiff has not preserved this exception by in-
Those cases are no authority for this position. They were entirely different. The lien of 'a third party intervened ; the court was dealing with his rights, and besides the proposition decided, there is in one respect the converse ©f the proposition laid down in the instruction here. In that case a^merchant owed a debt. He conveyed, or pretended to convey, a lot of goods to his creditor in payment. When the values of the goods were carried out and footed up, it was found that he had conveyed an excessive quantity. Thereupon, the creditor, without releasing the conveyance, took a confession of judgment for his debt from the merchant, and under it levied an execution upon the very same goods. But prior to this levy another creditor levied an attachment upon the goods. It was held, and plainly enough, that this subsequent act of the former creditor in taking the confession of judgment from the merchant, and levying an execution thereunder upon the goods which he had previously pretended to receive in payment of his debt, was totally inconsistent with such previous act. It was an abandonment to his debtor of. the goods which had been previously conveyed to the creditor; since it would be absurd to take a con
II. Upon the other question made by the defendant, namely, that the damages are excessive, it is sufficient to .say that the cases on which he relies, Woodburn v. Cogdal (39 Mo. 222, 228), and Miller v. Whitson (40 Mo. 97, 101), and Hutchins v. Buckner (3 Mo. App. 594), have been overruled by Chapman v. Kerr (80 Mo. 158).
The measure of damages when the defendant prevails in an action of replevin is no longer the value of the property at the time of the seizure under the writ, with
The appellant asks ns, in case we take the view which we take as to the first assignment of error, to enter judgment here for the plaintiff for all the property taken under the order. We do not understand, that we can do this ; for this would be to make a verdict for the plaintiff as well as a judgment, which we can not do.
The judgment is reversed, and the cause remanded. It is so ordered.