83 Mo. App. 565 | Mo. Ct. App. | 1900
Plaintiff replevied from defendant a Springfield vibrating. separator with appurtenances, and also one second-hand 12-horsepower traction engine. Defendant’s answer set forth his contract with plaintiff whereunder he acquired title to the property, and alleged a mutual agreement for the exchange of the Springfield vibrating separator for another of a different make; averred that plaintiff failed to comply with the terms of this agreement for substitution; prayed that his notes given for the purchase of the property should be delivered up and canceled, and concluded by asking “that said Springfield separator be adjudged the property of plaintiff, and the said 12-horsepower traction engine be adjudged the property of defendant,” adding a prayer for judgment for damages. The cause was submitted to a jury and a verdict rendered that the defendant was entitled to the possession of the Springfield separator complete and also the second-hand 12-horsepower traction engine, which latter was found to be of the value of $850, and defendant’s damages were assessed in the sum of $200. The court rendered judgment in accordance with the verdict of the jury, from which plaintiff brought the case to this court by a writ of error.
It is insisted by the learned counsel for plaintiff in error that the record proper discloses a fatal defect- in the judgment rendered in the court below in this, that despite the fact that defendant in error failed to claim the Springfield vibrating separator in his answer and to demand the return thereof, the court adjudged the right to its possession to be vested in him. This error is well assigned. R. S. 1899, sec. 4473; Chemical Co. v. Nickells, 66 Mo. App. 689; Foster v. Carr,