34 Mo. App. 602 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was an action of replevin for a Winchester rifle, originally commenced before a justice of the peace against Z. T. Fulton and John Bryden. On trial anew in the circuit court, there was a verdict in favor of the plaintiff and against the defendant, John Bryden; but the verdict did not dispose of the issue as to the defendant Fulton. The verdict fixed the value of the gun at twenty dollars, and awarded one dollar and
This instruction was evidently drawn with the view of submitting to the jury the only issue in the case, in one comprehensive instruction, and this purpose is to be commended. Concerning this instruction we observe:
I. In view of the fact that the cause will have to be tried again, we regard it as wholly immaterial whether the plaintiff was guilty of the supposed larceny. If the warrant was sued out against him for the purpose of coercing him into the payment of a civil debt, and not for the bona-fide purpose of prosecuting him for a crime or misdemeanor, which the person or persons who instituted the prosecution had probable cause to believe that he had committed, and if by this means the defendants frightened him into parting with his property, it was a case of duress by threats, and he was entitled to recover it in replevin. In this regard the instruction was more favorable to the defendant Bryden than he was entitled to.
II. The instruction is erroneous on the measure of damages, in that it directed the jury that if they should return a verdict for the plaintiff, they should ascertain the value of the gun at the time when it was taken, with damages for the detention of it, not exceeding six per cent, per annum on the value of it from that time. The present law is that the rule of damages in actions of replevin is the value of tbe property at the date of the trial, together with the damages for its caption and
III. But it is further to be observed — assuming, as we must, that the bill of exceptions contains all of the •evidence adduced at the trial — that there was no evidence of the value of the gun, either at the time of the taking or at the time of the trial, and hence no ■evidence on which to base an instruction as to the damages or on which to support the verdict which the jury rendered. The only evidence in the record which was offered by the plaintiff touching the value of the gun was his statement that he gave twenty-five dollars for it. This evidence had no tendency to show what the value of the gun was at the time of the trial. The date at which, the market in which, and the circumstances under which the plaintiff gave twenty-five dollars for it, were not stated. Value is generally proved by the opinions of witnesses who are shown to be •competent to give an opinion on the subject. Clark v. Field, 42 Mich. 342 ; Curtis v. Railroad, 20 Minn. 28. It is said by Mr. Sutherland: “If the article in question has a market value, that will usually control, as the best evidence of its value. If this test has been applied to it by actual sale of it, the fact may be proved as evidence of its value. It is not conclusive, but tends to show its value, and, in the absence of other evidence, would suffice.” 2 Suth. Dam. 375. This principle was adopted by the Kansas City court of appeals in Stevens v. Springer, 23 Mo. App. 375, 385, which was an action for the conversion of personal property. That court held that the price which the plaintiff had paid for the property at a sheriff’s sale was some evidence of its value, and that the court erred in refusing to permit the
IV. Passing from the consideration of this instruction, it is claimed that there was no evidence tending to prove that either the defendant Pulton or the defendant Bryden had possession of the gun at the commencement of the suit. We do not think that there is much strength in this objection. The record shows that Pulton and Bryden gave a delivery bond for the gun after the writ of replevin had been served upon them,— thus electing to retain it instead of surrendering it up. This, we apprehend, estops them from setting up the claim that they were not in the possession of the gun at the time of the commencement of the suit.
V. A motion in arrest of judgment challenged the verdict as not being responsive to the issue, in that it found the issue in favor of the plaintiff and against the defendant Bryden merely, without disposing of the issue as to the defendant Fulton. It nowhere appears that the suit was dismissed as to the defendant Pulton. Where an action is brought against two defendants jointly, a verdict and judgment which ignores one of
The judgment will be reversed and the cause remanded.