Griffith v. Gillum

31 Mo. App. 33 | Mo. Ct. App. | 1888

Thompson, J.,

delivered the opinion of tne court.

The plaintiff rented to one Thorp a farm for the year 1886 for the annual rental, of five hundred dollars, to be paid on the first of August of that year. Thorp had been the tenant of the farm for several previous years, and on the first of August, 1886, owed the plaintiff, on account of rent for previous years, about seven hundred dollars. About that time Thorp, without paying the rent for the year 1886, turned over to this defendant, who was his brother-in-law, most of the wheat which he had grown upon the place in the season of 1886, which the defendant sold for three hundred and eighty dollars. Thorp did this for the purpose of discharging a liability which he had incurred in favor of the defendant in an amount exceeding four hundred dollars. Two hundred dollars of this liability was for money loaned by the defendant to Thorp, for which the defendant had taken a mortgage upon this very crop, with the knowledge of the’ plaintiff, as the defendant’s evidence tended to show. The defendant’s evidence tended to show that, when Thorp turned over the wheat to the defendant, the plaintiff had given him (Thorp) permission to sell the same. Shortly after Thorp turned over the wheat to the defendant, he and the plaintiff had a settlement for all rents due on account of Thorp’s occupancy of the farm,, including the five hundred dollars, due for the year 1886, in which settlement an amount exceeding twelve hundred dollars was found due from Thorp to the plaintiff, for which Thorp gave the plaintiff his promissory note. The plaintiff, at the time of this settlement, desired Thorp to secure the note in some way, but Thorp was unable to do so.

This action is brought by the plaintiff against the defendant to recover damages for the conversion of the wheat which Thorp turned over to the déíendant, on the theory that, when it was so converted, the plaintiff had a landlord’s lien upon it, of which fact the defendant had knowledge. The answer admits the purchase of the wheat from Thorp and that it was grown on the plaintiff ’ s farm in the year, 1886; but sets up, among other things, that, prior to the defendant’s purchase of the wheat from Thorp, the plaintiff had given Thorp permission to sell same.

The case was tried before a jury, and resulted in a verdict and judgment for the defendant, to reverse which this writ of error is prosecuted.

I. The first error which is assigned is, that the court excluded from evidence the record in an action previously prosecuted by the plaintiff against Thorp, in which the plaintiff had recovered a judgment against Thorp. It was offered in evidence for the purpose of showing that the rent for the year 1886 had not been paid by Thorp. There was no error in this ruling. The defendant was not a party to this action, and, therefore, the record of the judgment proved nothing as against’ him. It was res inter alios acta. Missouri Fire Clay Works v. Ellison, 30 Mo. App. 67. But if it had been competent evidence, the error of ruling it out would not have been prejudicial, because the fact that Thorp had not paid any part of the rent for the year 1885, was-otherwise proved at the trial and was not controverted.

II. It is next assigned for error that the defendant was allowed to introduce testimony tending to show that the plaintiff had permitted Thorp, while occupying the farm as his tenant, to sell crops growing upon his farm during several previous years. This was error; Any indulgence which he had extended to Thorp in the matter of paying his rent in previous years would not tend to show that he had waived his lien for rent upon the crop of 1886. But it does not follow that, because-the evidence was irrelevant and ought to have been excluded under the plaintiff’s objection, the error of admitting it was necessarily prejudicial, so as to require-a reversal of the judgment. The direct evidence that the plaintiff had given Thorp permission to sell the wheat raised during the year 1886 was very strong, consisting of the deposition of Thorp himself and of evidence of the statements made by the plaintiff under oath while testifying as a witness in the previous trial of his action against Thorp. This being so, the exclusion of this item of irrelevant evidence could scarcely have changed the result.

III. The court permitted the defendant to show,; by the testimony of James B. Wells, that in 1886 Thorpwas indebted to Wells, for which indebtedness the-defendant was surety for Thorp, and that defendant had paid him, Wells, a part of the debt. We see no error in this. It tended to show that, to the extent to which the plaintiff had discharged the debt of Thorp, Thorp was indebted to him. It was, therefore, relevant as. tending to show that Thorp had turned over the wheat to the defendant in the discharge of a bona-fide indebt-' edness.

IV. The plaintiff requested the court to give the following instruction:

“The court instructs the jury that the defendant admits that he received the sum of three hundred and eighty dollars, arising from the sale of the wheat crop raised on the plaintiff’s farm in 1886, by one Gordon A. Thorp, the tenant of plaintiff; and defendant also admits that he purchased said wheat from said Thorp. The court, therefore-, instructs the jury that, if they find from the evidence that the sum of five hundred dollars for the rent of said farm for 1886 remained due and unpaid by said Thorp to plaintiff, and said rent became due at any time within eight months prior to the purchase of said wheat by defendant,—then the plaintiff had a lien on said wheat, at the date of said purchase, to secure his said rent; and the verdict of the jury should be for plaintiff, against defendant, for the said sum of three hundred and eighty dollars, with six per cent, interest thereon, from the fourteenth day of Aaugust, A. D., 1886.”

The court refused to give this instruction as asked, and gave it as thus qualified:

‘c Unless defendant has shown to the jury, from the evidence in the cause, that, prior to the sale of said wheat, the plaintiff agreed with such tenant to waive his lien thereon, if said tenant should sell said wheat, and that, under and on account of such agreement and permission of plaintiff, the said tenant did sell said wheat, or any part thereof to defendant.”

The court also, at the request of the defendant, instructed the jury as follows:

“If the jury believe, from the testimony in the case, that plaintiff, prior to the sale of the wheat crop, harvested in the year 1886, gave his tenant, Gordon A. Thorp, permission to sell said wheat, and intended thereby to waive a lien, and to look to Thorp for the payment of the rent, then the verdict will be for the defendant.”

We see no error in the qualification which the court added to the plaintiff’s instruction, or in the instruction given at the request of the defendant. The two instructions, as given, submitted to the jury the real issue in the case. We see no force in the argument that the waiver, if made, wás not a waiver, because it was not founded on a valuable consideration. A consideration such as is necessary to support a contract is not necessary to support a waiver. A waiver may often take place in consequence of laches merely, or inconsequence of acting inconsistently with the idea of insisting upon the right which is waived. This is a familiar branch of legal doctrine, which not only arises in cases of insurance, but in many other cases. If in fact the plaintiff consented that Thorp should go on and sell the wheat, as he had allowed him to do in previous years, and if the defendant knew this fact, as the evidence tends to show that he did, it would be very unjust towards the defendant to allow the plaintiff to change position and to recover the value of this wheat from the defendant.

On the whole, we see no error in the record of which the plaintiff can justly complain, and we • according] y affirm the judgment.

All the judges concur.'