Dieckman v. Young

87 Mo. App. 530 | Mo. Ct. App. | 1901

BOND, J.

This action is for conversion of a crib of corn. The defense was that plaintiff was not the owner of the corn, but that it belonged to defendant. On the trial defendant had judgment. Plaintiff appealed.

I. The first point made by appellant is that the general denial did not authorize the defense of the ownership of the corn by defendant. The plaintiff had alleged ownership in himself; this was negatived by the general denial. It was competent for defendant to sustain his side of the issue so joined by evidence of ownership in himself, for in so doing he merely controverted a fact which plaintiff was bound to prove in order to sustain his action.

II. It is next urged that the sale, by which defendant undertook to show title in himself to the corn, was within the prohibition of the statute of frauds. This point is untenable, since there was evidence that payment was made at the time of the sale by the giving of a credit on the notes of the vendor which were held by the vendee, the defendant. R. S. 1899, sec. 3418.

III. It is also urged that there was no such visible change of possession of the corn under the contract of purchase by defendants as to validate the sale against the subsequent purchase of plaintiff from the same vendor. There might be some force in this contention, if the evidence did not tend to show that plaintiff’s purchase was made with actual knowledge of the prior executory sale to defendant. Under that view of the case, plaintiff was in no position to invoke the statutory requirement as to change of possession. R. S. 1899, sec. 3410.

IV. It is further contended that the sale agreement between defendant and the common vendor was incomplete in that there was no evidence of the measurement of the corn by the persons selected for that task. It did appear from the evidence that the seller was informed of the fact that an actual measurement by two other parties was made; that he gave them his assistance in this work and afterwards made a complete settlement of his indebtedness to defendant, growing out of several transactions, by taking into account in such settlement the allowance to him of a credit for the crib of com, based upon the measurement actually made. These facts and circumstances furnish a sufficient basis for an inference of his assent to the measurement of the corn, which was actually made.

V. It is finally urged that irrelevant testimony of previous dealings of the defendant and his vendor was admitted. This point is not properly presented in the brief by reference to the testimony complained of, and we might well decline to give it any consideration for that reason, but we have carefully examined the entire record, and while it does disclose incautious admissions of collateral matters, it bears out the further conclusion that these misreceptions were harmless error. It is true that it has been said that all errors occurring on the trial are presumptively prejudicial, hut it is equally well settled that this presumption loses its force when it appears from an examination of the entire record that the errors complained of were non-prejudicial to the appellant.

The judgment herein is affirmed.

All concur.