56 Mo. App. 183 | Mo. Ct. App. | 1894
— This action was commenced before a justice of the peace, and is for the recovery of two horses. The case was tried on appeal in the circuit ■court, where defendants had a verdict and judgment, and from this plaintiff has appealed.
The facts necessary to be stated are about these: Prior to February 12,1891, Bricker and the defendants ■Stroud were together engaged in the saloon business at Minden, Missouri. On that day Bricker bought out the interest of the Strouds, and on the following fourth •day of April gave his note to them, in settlement, for ■$159.05, due seven days after date; and secured the •same by a chattel mortgage on the two horses in condroversy and other property. But Bricker continued in possession of the horses, and during the month of April paid to defendants, in cash, on the note and mortgage, an aggregate of about $115; and in addition to this defendants owed the plaintiff on a running account .at the saloon about $46, which plaintiff claimed was to .go as payment on the note. On or about May 1, •defendants borrowed the two horses from plaintiff; and •about the fifteenth day of that month defendants agreed with plaintiff that if he would permit them to use the •team in the prosecution of their meat shop business, they would allow him whatever was reasonable and •right.
Matters continued in this condition until about the
At the trial the circuit judge gave a number of' instructions concerning which, however, it is only necessary to state that the jury were told that defendants, were entitled to their verdict in the event either (first) that there was a balance due on the chattel mortgage-when the suit was begun, or (second) that defendants, had purchased the horses from plaintiff.
Here is the question we have to determine on this, appeal: Should defendants be permitted, under the circumstances of this case, to defeat plaintiff’s action, on the ground that, although defendants may not have-bought outright the horses from the plaintiff, yet the plaintiff could not recover because there may have been, at the institution of the suit an unpaid balance due on. the chattel mortgage. We think not, and for that reason the judgment must be reversed.
This is unquestionably a case of ordinary bailment ;■ and the rule prevails here, as with landlord and tenant, that the bailee cannot deny that his bailor had the right and title to the property at the time of the bailment. The bailee may show that, although the bailor had title when the relation between them begun, it had been since lost or parted with through, and by, some act of the bailor, such, for example, as that the bailee had, during the bailment, purchased the property from the.
Admitting now all that these defendants can. claim — that there was, in fact, a balance due them on the chattel mortgage, and that plaintiff was in default,, and that by reason thereof defendants were, at law, entitled to possession of the mortgaged goods — and yet. they were bound by the terms of their contract of bailment to return the horses to the plaintiff on demand, unless, indeed, they had, during the course of that relation, purchased the property from the plaintiff. For it must be remembered that when the horses were turned over to them (borrowed or hired, as the case may be) the title as between the parties, as well as right-of possession, was precisely the same as when this suit-was brought. At the time when defendants borrowed or'hired the horses, the mortgage debt was then past, due and not entirely paid (according to the defendant’s evidence), so that the title to the property mortgaged, and right of possession was then just as when defendants refused to surrender the same. There was then no-change in title or right of possession occurring after thebailment begun.
But it is claimed by defendants’ counsel that this, doctrine that the bailee will not be heard to deny the
The bailor, then, has a legal claim under and by virtue of the contract with his bailee. The parties have • agreed that the bailor then had title; it is a component part of that contract to take that matter as settled ' between themselves, and that the bailee will, at the ' termination of the bailment, restore the property to the bailor. The claim, then, of this plaintiff, is simply to ■enforce the contract he had with the defendants — it is legal, not equitable, and therefore within the scope •of the justice’s jurisdiction.
In our opinion, then, there was but one question in this case, to-wit: did the defendants, during ■ the time they had possession of the horses under the contract of bailment, become purchasers thereof? They were estopped by their own contract from disputing plaintiff’s title at the time they borrowed or hired the ' horses; but it was legitimate for them to show that ■subsequently, and during the course of, the bailment,
The judgment will be reversed and cause remanded, for a new trial.