103 Mo. App. 131 | Mo. Ct. App. | 1903
In August, 1899, plaintiff delivered to defendant, a public warehouseman, in the city of St. Louis, a quantity of household goods and chattels for storage at rate of six dollars per month. About a year prior thereto, plaintiff had executed and delivered to one Little, a chattel mortgage upon the same personalty to secure an indebtedness of fifty dollars due sixty days after date; the property being then contained in and comprising the furniture and household equipment of dwellings numbers 615 and 617 South Broadway, St. Louis, where plaintiff was conducting rooming houses. In January, 1900, defendant advertised the sale of the goods for default in the charges, purporting to act under the provisions' of section 8482, Revised Statutes 1899, vol. 2, but no sale was then made, nor until February 23d, following, when without notice to or knowledge of plaintiff, and without conforming to the statutory requirements, the property was disposed of by defendant. The latter sale was alleged to have been made at directions of a minor son of plaintiff, whose authority, as her agent, was repudiated by plaintiff.
“If you believe from the evidence that defendant sold the property in question without any authority or consent from plaintiff, then you should return a verdict for plaintiff for such sum as you may find from the evidence the property which was stored with defendant and sold was reasonably worth at the date of sale, with interest at six per cent from February 23, 1900, the- date of sale, you will compute the interest and add it to the-principal and render one aggregate sum in your verdict. If, however, you believe from the evidence that plaintiff did not pay the mortgage to Mr. Little, but that same was paid out of proceeds of sale, then you should, deduct the amount paid on such mortgage from the damages you find for plaintiff; you should also allow defendant such sum as the evidence shows he was entitled to for storage and charges, and'deduct same from the damages of plaintiff.”
This action was ex delicto and not ex contractu, being for the conversion of the household property stored with defendant. Section 2869, Eevised Statutes 1899, formerly section 4430, has been declared but the enactment of the common-law rule in this State and
The verdict for $373.98, obviously in obedience to the instruction above quoted, embraces principal and interest computed at the statutory rate therein named. It seems to us that the ends of justice will be promoted and subserved by affording plaintiff an opportunity to rectify the error of the lower court in remitting the excess. It is therefore ordered that if within ten days from the date of the filing of this opinion, the plaintiff ■shall enter in this court a remittitur of $58.98, the judgment shall stand affirmed for $315; but if such remittitur be not entered within the period fixed, then the judgment will be reversed and the cause remanded.