109 Mo. App. 458 | Mo. Ct. App. | 1905
In the fall of 1899 plaintiff and her husband purchased a farm of five hundred and sixty-four acres, in Warren county, Missouri. They made a partial payment and moved upon the premises, residing thereon until March, 1902, when they moved to the state of Kansas. The husband of plaintiff was so demented or insane that plaintiff was forced to become the head of the household and take upon herself the management and control of the farm and of all other affairs in which she and her husband were interested. In the fall of 1901, by the labor of two of her sons, she had twenty-five or thirty acres of the farm sowed in wheat. Before moving to Kansas, she gave a power ■of attorney to J. W. Delventhal to transact all her business in Warren county, and made a special arrangement with him to look after the growing wheat crop •and have it harvested, threshed and marketed, and pay the expenses thereof from the proceeds of its sale. When the wheat was ripe Delventhal had it harvested, paying therefor out of his own pocket. Just as the harvesting was being finished and before quite all the wheat had been put in shock, the sheriff of Warren •county appeared upon the premises with a writ of replevin issued by a justice of the peace in a replevin suit ineffectually attempted to be brought by Henry Schotte •against John Hase and T. J. Kriekbaum. The sheriff "turned the wheat over to the defendants herein who •took possession of it, hauled it off, threshed it, sold it
Defendants, at the trial, sought to justify their action in several different ways. Their claim of right to the possession of the wheat, under the replevin suit, was abandoned at the trial by being withdrawn from the jury under instructions given by the court which, in this respect, were correct. The other claims worthy of consideration are, first, the effort of defendants to show title to the wheat under a chattel mortgage given by John Hase to August Redeker and second, the sale of the wheat by John Piase to Henry Schotte, and such conduct on the part of plaintiff, in respect to the wheat, as to estop her to deny that John Hase was authorized to sell and dispose of it. In regard to the mortgage, the evidence shows that John was the minor son of plaintiff; that he wanted to buy a horse and went to Redeker to borrow twenty-five dollars for that purpose, telling Redeker he would give him a mortgage on the wheat to secure the loan. Redeker testified that before making the loan, he went to see plaintiff to inquire about John’s right to mortgagee the wheat and plaintiff told him it would be all right, that John could mortgage it or sell it, that the wheat was his; that he, (Redeker) then took John’s note for twenty-five dollars and a mortgage on the wheat to secure the same. Plaintiff’s version of this conversation is, that she did not tell Redeker the wheat was John’s, but gave her consent for John to mortgage it to secure the twenty-five dollers to enable him to buy the horse, and that she gave John permission to mortgage it for that purpose, in her name.
John paid Redeker seven dollars and fifty cents on the note and Redeker then transferred it to defendant Henry Schotte. The evidence shows that before the defendants took possession of the wheat, John, through his attorney, Delventhal, tendered the amount due on
The trial court was of the opinion that Redeker’s testimony was sufficient to estop plaintiff to set up title to the wheat as against the defendants, otherwise the following instruction, which was given for defendants, would not have been given:
“1. If the jury find from the evidence that Mrs. Hase represented to August Redeker that her son, John Hase, owned the wheat in question and had the right to sell or otherwise dispose of same, then Mrs. Hase is not ■entitled to recover said wheat and can not recover in this case, and your verdict must be for the defendant. ”
There is not a ray of evidence that plaintiff ever made any representation to Henry Schotte or to any of the other defendants, that John Hase had authority to sell or otherwise dispose of the wheat, and hence there is no evidence upon which an estoppel can be predicated.
The court further instructed the jury, in effect, that if John Hase had authority from his mother to sell or otherwise dispose of the wheat, it should find for defendant. Redeker’s evidence is, that plaintiff told him the wheat was John’s and he had a right to mortgage or sell it. Under this evidence, the instruction should have been'to find for plaintiff, if the jury found the wheat belonged to John Hase and that he sold it
