102 Mo. App. 395 | Mo. Ct. App. | 1903
In October, 1901, the plaintiff and one F. M. Ownbey entered into a written contract by which the former “conveyed” to the latter sixty-eight head of cattle to be cared for and kept by such latter for five years. . The contract provided that the increase was to be equally divided when two years old; that the cows should remain with the herd; that at the expiration of the five years the latter should return to the former sixty-eight’ head of cattle (the same being the number of the original herd conveyed to such latter) and thirty-two head of calves. After the cattle went into Ownbey’s possession under the contract, certain differences sprang up between the contracting parties in respect to the expense, management, etc., of the cattle. It appears that fifty-six head — cows—of the herd were shipped to Prey Bros. & Cooper, a commission firm at St. Joseph — but whether shipped by plaintiff or Ownbey the evidence is in sharp conflict. It is conceded that they were billed
It should have been stated that the Denver Live Stock Commission Company had. previous to the arrival of the cattle notified the St..Joseph commission firm that it held a mortgage on the cattle given to it by Ownbey, and to retain the proceeds of the sale. And this fact was mentioned in the statement of the St. Joseph commission company to the bank already referred to.
It appears that shortly after the deposit was made, the bank without the consent of the plaintiff at the instance of Ownbey paid over said proceeds to the Denver Live Stock Commission Company. The plaintiff thereupon brought this action against the defendant bank and in his petition alleged that he was the owner of the said proceeds so deposited and that defendants had converted the same to their own use by paying it out to other parties not entitled thereto, without his knowledge or consent. The answer contained a general denial to which were added a number of allegations which in effect pleaded the said contract between plaintiff and Ownbey and claiming that the said proceeds belonged to Ownbey and that by his order it — the bank — had paid over the same to the Denver Live Stock Commission Company. The replication was a general denial.
We think the judgment is impregnable to assault on account of any error committed by the court during the progress of the trial. We have been unable to discover any possible theory upon which the plaintiff was entitled to recover. Under the contract entered into between plaintiff and Ownbey, the latter acquired an interest in the cattle thereby conveyed; but as to the extent of that interest it is not material in the present action to inquire. It sufficiently appears that Ownbey became a joint owner of such cattle with the plaintiff. If the plaintiff were suing the defendant for the conversion of the cattle instead of for the proceeds arising from a sale . of them, it is clear that he would not be entitled to recover, for the law undoubtedly is that a joint owner of personal property has no right to sue severally for its conversion. R. S. 1899, sec. 544; Little v. Harrington, 71 Mo. 390; Spooner v. Ross, 24 Mo. App. 603; Miller v. Crigler, 83 Mo. App. l. c. 406, and authorities there cited. And the same rule applies where the action is by such joint owner to replevy it from his co-owner or assignee, or a stranger, as may be seen by further reference to the authorities just cited.
And so it has been held that if a right of action is alleged to be in one there is a fatal variance where the proof shows it to be in two. Thieman v. Goodnight, 17 Mo. App. 429; Spooner v. Ross, supra; Deyerle v. Hunt, 50 Mo. App. 541; Upham v. Allen, 76 Mo. App. 206; Bruce v. Sims, 34 Mo. 246-251. And no reason is seen why this principle is not applicable in a case like this where the action is against a stranger to recover for the
The question as to whether or not there is a defect, of parties plaintiff, does not arise on the record before us. This objection, if it ever existed, was not raised in the trial court by answer or demurrer and was therefore waived (R. S. 1899, secs. 598-602; Eastin v. Joyce, 85 Mo. App. 433; Poor v. Watson, 92 Mo. App. 89); nor is the question whether or not the defendant can be permitted to show as a defense-to the action that the title to the fund in issue was in whole or in part in Ownbey without connecting himself with that title.
It may be conceded that in actions of trespass.and for conversion the rule is that the title in a -third person is no defense unless the defendant can in some way connect himself with such third person and claim under him. Brown v. Shaw, 51 Minn. 266; Wheeler v. Lawson, 103 N. Y. 40; Steele v. Schricker, 55 Wis. 134; Jones v. Kellogg, 51 Kan. 263, and authorities there cited; Jaggard on Torts, p. 713. And it may, too, be conceded that the rule as to a bailee is that he is estopped to dispute the bailor’s title and is liable, unless he shows he has turned tbe bailment over to a party with a paramount title. Pulliam v. Burlingame, 81 Mo. 111; Sherwood v. Neal, 41 Mo. App. 416; Bricker v. Stroud, 56 Mo. App. 183. But these principles have no application to, or bearing on, the question we are now considering.
The precise question here is, whether or not since the plaintiff has alleged a cause of action to be in himself — alleged that the ownership of the proceeds of the sale, the subject of the conversion, was in him — and since the proof shows that such ownership was not in him but jointly in him and Ownbey, there is not such a variance as will preclude a recovery? This question, we think, must be resolved in the affirmative, because the title or right of action alleged was constitutive and should have been, as it was not, proved as alleged. Upham v. Allen, supra; Deyerle v. Hunt, supra;
Tbe judgment was for the right party and must be affirmed.