80 Mo. 400 | Mo. | 1883
This is an action instituted before a justice of the peace, R. W. Mitchell, of Jefferson township, Linn county. The plaintiff*’s statement is as follows:
Plaintiff states that the defendant owes plaintiff the sum of $60, now due, for the value of twelve head of grown sheep and - lambs, the increase of said sheep, which were sold and delivered by defendant and one A. Y. Husky, to one Gabriel Watterson, without the authority and against the will of plaintiff*, heretofore, to-wit, on the — day of -, 1880, and the proceeds of said sale for said sheep were
And plaintiff further states that defendant owes plaintiff the sum of $25.60 for and on account of said amount of money received by defendant for twelve fleeces of wool, which said wool was the property of plaintiff", and which was sold by defendant and one A. V. Dusky, to one A.’Wall-brunn, heretofore, to-wit, on the — day of-, 1880, and which said money has been converted and appropriated to defendant’s own use and benefit. Wherefore plaintiff prays judgment for said sum of twenty-five dollars and sixty cents and for interest and costs.
The controlling question in this record is whether a conversion of plaintiff’s sheep or their wool, or the proceeds of either took place as' charged in the complaint. If the evidence establishes that a conversion of plaintiff’s property occurred in either of these ways, and that the defendant in any manner aided in such conversion, the law holds him chargeable therewith and responsible therefor. True, a mere bailee, whether common carrier or otherwise, may receive property from one not rightfully entitled to possession and may deliver it in pursuance of the bailment, if this is done before notice of the rights of the real owner. After such notice he acts at his peril. Cooley on Torts, 456. And the evidence tends to show notice to the defendant, and a conversion by him of the property of the plaintiff and of its proceeds. Any wrongful act which negatives or is inconsistent with the plaintiff’s right is per se a conversion. Koch v. Branch, 44 Mo. 542; Williams v. Wall, 60 Mo. 318; State v. Berning, 74 Mo. 87.
In Koch v. Branch, supra, an agent who collected money on a stolen voucher for an innocent purchaser thereof, was held liable for its value to the true owner, and that in order to such liability it was not necessary that the agent
It is true that the error of admitting in evidence the Barnes mortgage was not called to the attention of the court inithemotion for new trial, but the discussion of the mortgage bas become necessary owing to its being referred to in-plipatiff ’s' third instruction as well as in defendant’s first instruction. And if the instructions asked by plaintiff’ should have been given without modification, it results therefrom that defendant’s instructions should have been refused. Defendant’s acts in retaining possession of the mortgaged property as the agent of Barnes after being apprised of plaintiff’s rights, and after such notification thereof, retaining the proceeds of the sale and refusing to de
Therefore judgment reversed and cause remanded.