84 Mo. App. 389 | Mo. Ct. App. | 1900
This is an action of replevin brought before a justice of the peace to recover the possession of a calf. The case, as disclosed by the evidence, is about this: The plaintiff, a married woman, with money received from her father’s estate, purchased a cow, giving her check for the purchase price thereof on the bank in which the money was on deposit. In January, 1898, she directed her husband to take the cow with his horses and turn her in defendant’s stalkfield with them. The cow was then with calf. On the sixteenth of March, following, she dropped the calf, here in controversy. On the next day the defendant purchased the cow of the plaintiff’s husband for $30, paying his five dollars of the purchase price.
Shortly afterwards, the defendant discovered that there was a chattel mortgage on the cow for $22. He called the attention of the plaintiff’s husband to the fact, whereupon the latter directed the former to discharge the mortgage out of the unpaid purchase price, which defendant accordingly did. The defendant later on paid the plaintiff’s husband the balance due on the purchase price. The defendant testified that at the time of the purchase of the cow nothing was said about the calf, but as the plaintiff’s husband had wanted to sell him the cow previously when he had brought her to his stalkfield, he thought that the purchase of the cow entitled him to the calf, though it had been dropped before his purchase and the plaintiff’s husband was not aware of the fact as far as he knew. He further testified that after he had purchased the cow of the plaintiff’s husband that he wanted to buy it back and that he (defendant) told him to wait until the calf was old enough to be separated from the cow and he would let him have her.
While the plaintiff’s husband did not, in his testimony) deny that he had sold the cow to the defendant, he did testify that the next day after the sale that he notified him that the plaintiff was the owner of the cow and had refused to approve
Among the errors of which she complains is the action of the court in the giving and refusing of instructions. Her third was refused as requested, but a modification was added and in that form it was given. In its modified form it told the jury: “If you believe from the evidence that plaintiff received, in 1894, $350 by inheritance or bequest, and with a portion of said money, to-wit, the $27, as evidenced by the check in controversy, she bought the cow which gave birth to the calf in controversy, and you find that said cow, while so owned by plaintiff, did give birth to the calf in controversy, then you are instructed, as a matter of law, that said calf was the separate property of plaintiff and not subject to sale or- disposition by her husband, unless by her express assent, in writing, and your finding should be for plaintiff. Unless you believe plaintiff had or requested her husbcmd to take the eow to defendemos farm for pasture on the stalkfields, and that the reasonable cha/rges for keeping the same were equal to or exceeded the value of the calf at the commencement of suit The words added by the court are in italics.
That given for the defendant was as follows: “The jury are instructed that a person who agists—that is, who keeps, feeds or pastures animals, has a lien on and the right to retain the possession of said animals, until the reasonable charges and expenses are paid for the feeding and pasturing said .animals. If the jury believe from the evidence that plaintiff was the owner of the cow that brought forth the calf in controversy; that plaintiff -requested or di
The defendant’s instruction, it will be noticed, is not much more than an amplification of the theory of the modification of that of plaintiff. We are not satisfied with the theory upon which the case was submitted by those instructions. We discover nothing in the evidence upon which to rest the theory that the defendant had a lien on either the cow or calf. Indisputably, such a lien, to have any existence, must be based on a contract express or implied.
The testimony was uncontradieted that the defendant at each of the two trials of this case before the justice had given his testimony to the effect that he made no claim of any lien for keeping the cow and calf, or either, but claimed he was entitled to the calf because he purchased the cow, and when
The instructions required the jury to find the reasonable charges for keeping the cow and to determine whether the same were equal to the value of the calf when there was no evidence whatever to guide them. It is clear to us that the lien theory was an afterthought that was entitled to no recognition in the instructions of the court. So far as the evidence shows, the defendant’s claim to the calf is based upon
That part, of the defendant’s instruction ydiich declared to the jury that if it believed from the evidence that defendant, by means of a replevin suit, or otherwise, regained possession of the calf, then, in that case, defendant would have a lien, etc., was clearly wrong, for there is nowhere in the' record the semblance of any evidence on which to base it. It is clear that the case was submitted to ‘the jury upon a theory, not authorized by the evidence. The action of the court in respect to the instructions we think improper, and for that reason the judgment will be reversed and the cause remanded.