Blurton v. Hansen, 135 Mo. App. 548

Blurton v. Hansen

135 Mo. App. 548 | Mo. Ct. App. | 1909

GOODE, J.

(after stating the facts). — The only question argued and presented for our determination is whether the description of the property in the statement. was sufficient to let in evidence to establish a right of possession in plaintiffs, and it is unless a verdict on it would be arrested. [Donaldson v. Butler Co., 198 Mo. 163.] We do not say defendants might not have exacted by motion a more specific description. They preferred no definite objection against the description when they objected to the reception of evidence, and if this had been done, perchance the complaint might have been amended to describe the property more specifically; a circumstance of some influence. Speaking generally, a petition or complaint in replevin must give such a description of property sought to be recovered as will enable the officer to identify it when he undertakes to execute a writ for the caption of it. [Maloney v. Smith, 7 Mo, App. 578; Gray v. Parker, 38 Mo. 160; Kaufman v. Schilling, 58 Mo. 218.] Plaintiffs have described the property involved as twenty-five hundred pounds of zinc and lead ore, the same being a quantity of said ore delivered to the defendants on a certain date to be milled by defendants. It is further alleged the property was wrongfully detained by defendants at the time the action was brought in the county of Newton. If this ore could be found and identified, it might be replevied; that is, it was personal property *552and fell within the scope of the remedy of replevin. Stating the quantity in pounds, and the kind of ore, and that it was the same ore theretofore delivered on a certain date to defendants to be milled by them, is, perhaps, as certain a description as the property was susceptible of; and we cannot say without evidence on the subject, it would be impossible for the officer to identify it from the description. If he was enabled to identify it by inquiry, the description was enough and it seems he Avas able to do this, for, according to his return, he took possession. [Sexton v. McDoud, 38 Mich. 148; Cobbey, Replevin (2 Ed.), sec. 547, note 9.] Many cases of good and bad descriptions are collected in the note to Wells on Replevin (2 Ed.), p. 155, and in Cobbey, supra, and from those authorities we consider this one good enough for the admission of evidence. Approaching more closely to the contention of defendants, we find the gist of their argument to be, not that the aforesaid description standing alone, would be inadequate, but that it Avas made so by the further statement Avherein it Avas said the property had been damaged and injured by defendants mixing it with a quantity of other and cheaper ore. It is argued this mixture of plaintiffs’ ore with other ore would prevent it from being identified, and therefore, the complaint, as a whole, contained no proper description. Several things are to be remarked concerning this argument. In the first place it is apparent the allegations regarding the mixture of the properties were not insisted on as part of the. description, but to obtain damages on account of the injury done to plaintiffs’ ore. We do not .know but what plaintiffs’ ore, or some of it, could be distinguished and separated from defendants’ and if it could be,, the mixture would not stand in the way of recovery. It is for a jury to say about this. [Cobbey, sec. 401; Coldwell v. Pray, 41 Mich. 307.] Nor do we know how much inferior ore Avas mixed with it, .and the quantity might have been so inconsiderable the fact could be *553ignored, as far as plaintiffs’ right to recover for their own property is concerned. And sometimes where stuff has been commingled, a plaintiff may take his part. [Cobbey, sec. 404; Kaufman v. Schilling, supra.] Then, again, the mixture may have been wrongly made by defendants so that plaintiffs would be entitled to recover their property even though some of defendants* was taken with it. [Wells, sec. 291; Cobbey, sec. 405; Tootle v. Buckingham, 190 Mo. 183.] Our conclusion is the objection ought to have been overruled and evidence received to ascertain whether plaintiffs’ property could be ascertained, or, if it could not be, whether defendants were so far to blame as to prevent them from taking advantage of the mixture of goods.

The judgment is reversed and the cause remanded.

All concur.