Knipper v. Blumenthal

107 Mo. 665 | Mo. | 1891

Thomas, J.

This action is for the recovery of the sum of $2,876.80.

Plaintiff alleged that Amadee Berthold executed and delivered to defendant’s intestate two promissory notes, dated March 5, 1883, payable two years after date, with interest at the rate of eight per cent, per annum, one for $1,400, the other for $1,008, and that these notes were, in July, 1883, indorsed by said intestate, and delivered to plaintiff for value. The petition then proceeded as follows:

“ Plaintiff still further states that in said month of July, 1883, the said Josephine Farnsworth requested plaintiff to loan her said notes for the purpose of using them as collateral security for the benefit of said Farnsworth, and that, in pursuance of said request, and upon the promise of said Farnsworth to return them, plaintiff did deliver said notes to her for such purpose. That afterwards said Josephine Farnsworth sold said notes, received the proceeds thereof and converted the same to her own use; that said notes were paid in full by the maker thereof at their maturity, and that said Farnsworth always neglected and refused to either return said notes Jo plaintiff, or account to her for their value, but on the contrary wrongfully kept and' appropriated them to her own use, as aforesaid, by reason whereof the amount of said notes was wholly lost to plaintiff, to her damage in the sum of $2,876.80 ; wherefore, she prays judgment against the defendant as administrator of the estate of said Josephine Farnsworth for the sum of $2,876.80, and cost of this suit.”

The answer was a general denial, and an affirmative plea based on the theory that the notes described in the petition were never the absolute property of plaintiff, and if ever in her possession it was as collateral security only, for the payment of a claim for money and goods loaned and advanced Josephine Farnsworth, which claim was presented by plaintiff against the estate in the probate court for $903.88, and allowed by that court for $882.98, and judgment rendered thereon March 24, 1887, eighty per cent, of which had been paid, and the balance of which would be paid as fast as the assets of the estate could be collected.

The reply to the new matter in this answer was a general denial.

The court instructed the jury as follows: “The jury are instructed as a matter of law, that, if they believe from the evidence that the notes in question belonged to plaintiff in July, 1883, and that they were loaned to the deceased Josephine Farnsworth, to be temporarily used by her as collateral security for money borrowed or to be borrowed by the deceased, and that when said purpose was accomplished said notes were to be returned to plaintiff, and if you further believe from the evidence that the deceased, Josephine Farnsworth, collected, sold or otherwise disposed of said notes for her own use and benefit, and so as to deprive plaintiff of said notes without her consent, this, if proved to your satisfaction by the evidence in this case, will amount to wrongful conversion of said notes by the deceased and no demand for the possession thereof need be made by plaintiff before commencing suit to recover the value of said notes.”

The jury found the issues for the plaintiff, and judgment was accordingly entered and the case is here on defendant’s appeal,

The defendant, in his brief, says: “Inasmuch as one defense relied on both in the court below, and here, namely, a total failure of proof of the cause of action sued on, appears to us amply sufficient to entitle the defendant to a reversal; for sake of brevity we will concede, for the purpose of this appeal only, that the defendant failed to prove his • affirmative defense, and that plaintiff, just prior to giving up the notes to Mrs. Farnsworth (in July, 1883), was the real owner of the notes.” In addition to the facts .above conceded, the evidence tends to show that the intestate did receive the notes at the time, on the conditions and for the purposes set out in the petition, and that she collected the amounts specified therein from the maker, and converted the proceeds to her own use.

I. The first contention is that, “ when the petition admits defendant’s possession of property alleged to have been converted, to have been originally rightful, a demand and refusal is necessary to transform a mere detention into a conversion.” This is not the law. Where a party becomes legally possessed of goods, and actually converts them to his use, no demand is necessary before bringing suit. Himes v. McKinney, 3 Mo. 382; Ross v. Clark, 27 Mo. 549; Battel v. Crawford, 59 Mo. 215. Here the plaintiff alleges, and the evidence shows a conversion by defendant’s intestate of the proceeds of the notes.

II. A lengthy argument is made that this is an action of trover, and it is sought to, apply to it the old technical rules of practice in regard to that form .of action. In our state we have but one form of action, and the plaintiff is simply required to made a concise statement of the facts upon which he seeks to recover. The plaintiff in the case at bar stated facts, which if true entitled her to the relief she asked ; upon proper instructions the jury found the facts thus alleged to be true, and we, therefore, think the judgment ought to be affirmed, which is accordingly done.

All concur.