230 S.W. 664 | Mo. Ct. App. | 1921
Plaintiff sued to recover for the alleged wrongful taking of fixtures which she was using in a cafe. The cause was tried to a jury, and plaintiff recovered judgment for $500, and defendants appealed. It is not clear from the abstract of the record or the certified copy of judgment on file whether the judgment went against all the defendants.
Plaintiff alleges that on January 3, 1918, she owned and was in the possession of three dining tables, twelve *695 dining chairs, one water cooler, one lunch counter, seven lunch stools, one confection cabinet, one range stove, two ice boxes, four rustic seats, three ice cream tables, eleven ice cream serving chairs, one water keg, one book case, three show cases, one soda fountain, one marble top counter, one wooden counter, one ice cream cone holder, one root bear extract container, and one electric milk shaker, using same in her restaurant in East Prairie, and that on that date defendants, over plaintiff's protest, wrongfully entered her place and took from her said property, and did not return it; that the property so taken was of the value of $1200, and that she was damaged, in addition to the value of the property, in the sum of $600. Defendants answered by a general denial, and a special plea to the effect that on October 25, 1917, and prior thereto one Russell was the owner and in possession of the property described in plaintiff's petition, and was using the same in running a restaurant and cold drink stand, and that while Russell was conducting this business he became indebted to defendants Watson and Hollick in separate accounts; that on October 26, 1917, Russell sold in bulk the property described to plaintiff, and that said sale was within the Bulk Sales Law, and that said law was not complied with; and that within ninety days of said sale Hollick and Watson each brought a separate suit by attachment against Russell, and attached said property as the property of Russell, Hollick's attachment being first; that defendant Rhodes was constable and served the attachment writs; that thereafter Hollick and Watson obtained judgments against Russell and with the executions issued thereon defendant Rhodes levied upon said property and sold the same, and with the proceeds paid the judgment and costs in Hollick's suit, and applied the balance on Watson's execution. Replying plaintiff denies that the property was attached, and alleges that said property was at all times in her possession and under her control. *696
Defendant Rhodes as constable made return on the Hollick attachment writ that he executed same on November 9, 1917, "by reading to and in the presence of Ida Gallup; thereby certify that I cannot serve Clint Russell as he is not in my county, and by attaching the following described goods and chattels of the defendant, the herewith attached list of goods and chattels." The list described the same property as described in plaintiff's petition. Plaintiff testified that Rhodes did nothing towards attaching the property except to read the writ to her, and make a list, with her assistance, of the property. The property was left in plaintiff's possession and she continued to use it in her restaurant until it was taken from her under the execution. Rhodes testified that he had no place to store the property and that he left it with plaintiff to keep for him as constable until he called for it. Plaintiff denied that she agreed to keep the property for Rhodes, but says that she kept it as her own. When Rhodes took the property under the execution, plaintiff vigorously protested.
For plaintiff the court instructed that if the jury found from the evidence that on January 3, 1918, plaintiff owned and was in the possession of the property, describing it, and that on that date Rhodes entered the building where plaintiff had said property and over plaintiff's protest took from her said property or any part thereof and carried the same away and did not return it or account for it otherwise, and that Rhodes was advised or instructed to take said property by Hollick or his attorney, then the verdict would be for plaintiff, unless certain predicated facts were found which would render the sale from Russell to plaintiff void under the bulk sales law. The court further instructed that in order to attach personal property it is necessary that the officer serving the writ of attachment actually take such property into his possession and out of the possession of the person in whose hands it is at the time if the property is such that it can be *697 taken possession of by such officer, "unless you believe and find from the evidence that plaintiff did retain and agree to hold and keep the property for defendant Rhodes as his agent and custodian, and not to hold it for herself as the vendee of of Russell." For the defendants the court instructed on the Bulk Sales and the attachment issues. At the conclusion of the argument the court gave an instruction to the effect that Russell was, before he sold to plaintiff, conducting such a business that if sold in bulk the sale would be within the provisions of the Bulk Sales Law.
Defendants' brief is not such as complies with our rules, and plaintiff challenges it on that ground. We can, however, gather from the brief and the record the decisive points. Defendants make in effect four assignments: First, that there is no substantial evidence to support the verdict; second, that the court erred in the admission of evidence; third, that the court erred in giving instructions for plaintiff; and fourth, that the verdict is excessive.
The first assignment proceeds on the theory that the sale from Russell to plaintiff was made without compliance with the Bulk Sales Law and was therefore void, and if void then plaintiff had no title and owned nothing, and regardless of the attachment being good or bad, defendants had the right under the execution to take and sell the property. If the sale was one that involved the Bulk Sales Law, and that law was not observed, then defendants had a right to proceed with the execution and take and sell the property, no question of limitation being involved. [Ward v. Stutzman,
The evidence claimed to have been erroneously admitted, concerned, so far as it is necessary to consider, the value of the soda fountain. A witness who had formerly owned the soda fountain was permitted over defendants' objection to testify that if the fountain was in good condition at the time defendant Rhodes took it from plaintiff that it was worth $400. He testified that it cost $1100 new as we understand, and that he gave $500 for it, and sold it with some other things for $200, but he said he sold it at a sacrifice. Plaintiff testified that the property taken from her was worth $1200. Another witness who conducted the sale for Russell when plaintiff bought testified that the property was reasonably worth from a $1000 to $1100. This witness also testified that plaintiff traded two houses (and presumably the lots) for the property she got from Russell, and that the property traded by plaintiff was worth $950. It is doubtful if the property taken from plaintiff could *700 be said to have a market value. It was all second hand, and defendants made no attempt to show that the value placed upon the property by plaintiff and her witnesses was not reasonable. Where property has no general market value the best obtainable evidence as to its value is admissible. [Strothers v. McFarland, Mo. App. 194 S.W. 881.] We have examined all of defendants' complaints based on the admission of evidence and find no reversible error. This also disposes of the assignment that the verdict is excessive.
The instructions especially those concerning the Bulk Sales Law were in effect a peremptory direction to find for defendants. Plaintiff did not claim that the Bulk Sales Law, if it applied, had been observed. The court instructed in effect that the business conducted by Russell was such that if sold the sale would be within the Bulk Sales Law. We find no error prejudicial to defendants in the instructions. A considerable portion of the record consists of evidence pertaining to the attachment. Plaintiff contending that the attachment was in law and in fact no attachment at all, while defendants contend that the constable properly attached the property. In view of our conclusion as to the Bulk Sales Law not being applicable to the sale involved here, it is not necessary to consider the attachment issue. We might say, however, that in view of the instruction the attachment issue is the only one that the jury could have considered; and that issue was found against defendants, and we think properly so.
The judgment below should be affirmed, and it is so ordered.Cox, P.J., and Farrington, J., concur.
*1