Jonesboro v. United Iron Works Co.

117 Mo. App. 153 | Mo. Ct. App. | 1906

BLAND, P. J.

(after stating the facts.)

1. The return of the sheriff to the writ of replevin shows that he took a forthcoming bond from the defendant for the delivery of the engine and tender, if it should be adjudged that plaintiff was entitled to their possession. The statute (sec. 4466, R. S. 1899) provides that a defendant in a replevin suit may give such a bond and retain possession of the property to abide the judgment of the court. In its judgment the court found the plaintiff was put in possession of the property by virtue of the writ of replevin and retained the possession thereof, and rendered judgment accordingly. Plaintiff insists' that the finding of the court, that plaintiff was in possession of the property, is contradicted by the record in the case, and that the judgment is such a judgment as the court was not authorized to render upon the facts as they appear from the record. The writ of replevin is a part of the record proper in the case, and the return of the sheriff on the writ is conclusive on the parties to the suit. [Keating v. City of Kansas, 84 Mo. 1. c. 418, and cases cited.] And the rule that estops the parties to deny the return of the sheriff to personal service to the writ of summons, extends as well to all other returns which the sheriff is required by law to make upon the writ. [Mason v. Perkins, 180 Mo. 1. c. 707, 79 S. W. 683; Sams v. Armstrong, 8 Mo. App. 573.] Another rule that comes in .play on account of the condition of the pleadings in the case is, that admissions made in the pleadings are solemn judicial admissions, made for the purpose of the trial, and the party making them is absolutely concluded thereby. [Knoop v. Kelsey, 102 Mo. 291, 14 S. W. 110; Seibert v. Allen, 61 Mo. 482; Weil v. Posten, 77 Mo. 284; Bruce to use of Pullis v. Sims, 34 Mo. 246; Davis v. Bond, 75 Mo. App. 1. c. 35, and. cases cited; Call v. Moll, 89 Mo. App. 386; Cousins and Hahn v. Bowling, 100 Mo. App. 452, 74 S. W. 168.]

The answer of the defendant specifically alleged that plaintiff had replevied and taken the property from its possession and prayed for its return. The reply, not directly, but substantially, admits these allegations by averring a state of facts showing that the property was delivered to it under the writ of replevin. And the agreement in evidence, to the effect that each party had a man present with the officer to examine the engine and tender when the officer took them from the possession of the defendant and delivered them to the plaintiff, in our opinion, shows conclusively that the case was not only tried upon the theory that the property was delivered to plaintiff, but that no other theory was advanced, thought of, or suggested until the case reached this court on the appeal, and the plaintiff is bound by the attitude it assumed in the trial court and cannot contest the proceedings here on a theory diametrically opposed to that attitude. [Benton Land Co. v. Zeiter, 182 Mo. 251, 81 S. W. 193; Dice v. Hamilton, 178 Mo. 81, 77 S. W. 299; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 354, 78 S. W. 579; Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, 76 S. W. 987; North St. Louis B. & L. Assn. v. Obert, 169 Mo. 507, 69 S. W. 1044; Krup v. Corley, 95 Mo. App. 640, 69 S. W. 609; MacDonald v. Tittman, 96 Mo. App. 536, 70 S. W. 502; Heman v . Larkin, 108 Mo. App. 392, 83 S. W. 1019.] And we think that, irrespective of the sheriff’s return, the appeal should be disposed of on the theory that the plaintiff was in the possession of the property, for the reason that fact was admitted by the pleadings, was shown by the evidence and the case was tried upon that theory.

2. The objection to the time slips as evidence is without merit. They were the original memoranda of the number of hours of work performed by each workman, who worked upon the engine, made from day to day as the work progressed, and were, according to all the authorities, admissible in evidence. [The Anchor Milling Co. v. Walsh, 108 Mo. 277, 18 S. W. 904; Robinson v. Smith, 111 Mo. 205, 20 S. W. 29; Missouri E. L. &. P. Co. v. Carmody, 72 Mo. App. 1. c. 541.]

3. Under instruction numbered 1, given for defendant, the jury were authorized to find for it the cost of the work and material expended in repairing the engine and tender, plus a fair margin of profit thereon. Plaintiff’s refused instruction numbered 8, restricted defendant’s right of recovery to what would have been the customary charge for the work and material by other shops equipped to do such work; and plaintiff contends that the case was tried on the theory comprehended by its eighth refused instruction. This contention is not borne out by the record. Defendant introduced one expert witness, W. C. Mitchell, from East St. Louis, Illinois, who, over the objection of defendant, testified what he thought his shop (East St. Louis Locomotive & Machine Shop) would do the work for. The actual agreement made was that the defendant should do the work, keep the cost down as low as possible and charge only a fair margin of profit thereon, and the defendant adhered to the contract throughout the trial. There was a good deal of evidence tending to slow that the defendant was not as well equipped to do the machine work as some other shops; and evidence* tending to show that more time was expended in doing the work than should have been, or would have been, if the defendant had been well equipped for the work. Defendant’s instruction numbered 1 submitted the case on the contract as made. Plaintiff’s instructions given restricted defendant’s right of recovery to what the cost would have been had the defendant been, as it represented itself to be, well equipped to do the work. Taken together, the instructions submitted the case on the exact theory on which it was pleaded and tried, and we think they are unobjectionable.

4. Defendant’s second instruction left it to the jury to find whether or not a contract was made. The contract was made by the letters that passed between the parties, and the court should' have so declared to the jury. [Falls Wire Mfg. Co. v. Broderick, 12 Mo. App. 1. c. 385; Eagle Mill Co. v. Caven, 76 Mo. App. 1. c. 462.] But the instruction correctly interpreted the contract to the jury and left nothing for them to find but whether or not a contract was entered into. They found there was a contract and, the court having correctly interpreted it to them, no harm was done. [Nelson v. Hirsch & Sons Co., 102 Mo. App. 1. c. 513, 77 S. W. 590.]

5. It is insisted by the plaintiff that the evidence fails to show a demand of payment of the account on September 1, 1904, or on any other date, and that the instruction authorizing the jury to allow interest on the account from September first, was erroneous. Our statute (sec. 3705, B. S. 1899) among other things, declares that creditors shall be allowed to recover interest at the rate of six per cent per annum on all accounts after they become due and demand of payment is made. The contention is, that there is no evidence of demand of payment of the account. The evidence shows the defendant notified plaintiff, on August twenty-fourth, that the work would be completed on September first, and requested that it have a man there to inspect and approve the work and O. K. the bills. The inspector did not arrive until September third, when he inspected the work, made some objection to the way some of the rivets were put in, which was corrected, and then pronounced the job a good one1. The bills were looked over by the man sent, who then Avent aAvay and on the next day telephoned plaintiff tha t he Avas instructed not to accept the bills on account oi excessive charges. Nothing Avas said in the contract in respect to the time in which payment for the work should be made, therefore, payment was due when the work was completed and the engine and tender made ready for delivery. This happened on September first, and we think defendant’s letter of August twenty-fourth to plaintiff, notifying it that the work Avould be completed on September first, with a request to' send a man authorized to accept the work and O. K. the bills, was, substantially, a demand for payment of the bills, within the meaning of the statute. To1 make a demand of payment it is not necessary to use the word “demand” or other formal Avords of demand; any intimation to the debtor that payment is desired, Ave think, satisfies the statute and entitles the creditor to interest on his account. [Miller v. Davis, 88 Me. 454; Truax v. Parvis, 32 Atl. 227; Vandolah v. McKee, 99 Mo. App. 342, 73 S. W. 233.]

6. The verdict reads: “Wé, the jury, find the issues for the defendant and assess the value of its special interest in the engine at thirty-eight hundred dollars.” It does not find the issues in respect to the tender, and in this regard is defective. But this defect was not complained of in the court below, in the motion for new trial, or otherwise, and for this reason cannot be complained of on appeal. [Hopper v. Hopper, 84 Mo. App. 117; Ring v. The Chas. Vogel Paint & Glass Co., 44 Mo. App. 111.] But complaint is made of the action of the court in supplementing the verdict of the jury, by finding that defendant should have the thirty-eight hundred dollars assessed by the jury, or the possession of both the engine and tender. The verdict is sufficient to sustain the judgment as to the engine. [Kronck v. Reid, 105 Mo. App. 430, 79 S. W. 1001.] But there was no finding by the jury as to the amount defendant should have for repairs on the tender, or that it had any special interest in the tender, and to this extent the judgment is clearly erroneous, hut the error is one that may be corrected by striking out the word “tender” in the judgment wherever it may occur therein; and the correction can be made here without remanding the case.

7. Defendant, for the sheriff, filed a motion asking that the sheriff be allowed to amend his return to show that he took a delivery bond from the plaintiff and took the engine and tender from the possession of the defendant and delivered possession thereof to the plaintiff. We heard evidence in support of this motion, tending to show that the sheriff actually took the property from the defendant and delivered it to the plaintiff. Suggestions in opposition to the motion have been filed by the plaintiff, in which the authority of this court to allow the amendment is challenged. The views we have taken of the case makes it unnecessary to allow the amendment or to discuss the question as to the authority of this court to make an order allowing the amendment, therefore, without passing on the question, we will simply deny the motion. The judgment will be amended, as above indicated, and affirmed as amended.

Nortoni> J., concurs; Goode, J., not sitting.