77 Mo. App. 481 | Mo. Ct. App. | 1898
Plaintiff sued William O. Langan and R. U. Leonori, Jr., for the conversion of certain household goods claimed by plaintiff. The allegation of the petition as to the conversion being, to wit: “And the plaintiff further says that the defendants then and there did aid, abet, assist, encourage and countenance the said Smith in said wrongful conversion of said property.” The defendants filed separate
Appellant Leonori, Jr., insists that his demurrer to the evidence at the close of plaintiff’s case should have been sustained for two reasons. First, because the petition failed to state a cause of action against him. Secondly, for want of evidence tending to show any liability on his part. The petition in the quotation, supra, clearly and distinctly charges each of the appellants with directly aiding and abetting a third person in the conversion to her use of the property of plaintiff. In other words, it charges a joint trespass by the defendants for the benefit of Mrs. Smith. That a trespass may be joint and that any number of persons acting for another in its commisson are equally with him liable in damages and may be sued either jointly or severally, is the well established law. Hence there is no merit in the contention that the petition failed to state a cause of action against either of the defendants. Neither can appellants’ (Leonori, Jr.) second ground of demurrer to the evidence be sustained. The evidence introduced in plaintiff’s case tended to show that he sold her property, collected the price, and turned it over to another. It further tended to show that the property in question consisted of a
It is next insisted on behalf of appellant Leonori, Jr., that the judgment and proceedings in the replevin suit were improperly admitted in evidence against him in this ease, since no one is bound by the results of a suit to which he was neither a party nor a privy. This position would be well taken if appellant Leonori, Jr., had been charged with conversion in his own right or in the right of any one except Mrs. Smith, who was
Appellant further complains that there was no evidence of a previous demand and refusal before the institution of this suit. These need never be shown where there is independent evidence of a conversion. The cheek to Mrs. Smith, given by appellant Leonori, Jr.,- for the proceeds received by him on the sale of the goods in dispute, furnished independent evidence of a conversion. There was, therefore, no necessity to prove that fact by other evidence. Horine v. Bone, 69 Mo. App. 486; Knipper v. Blumenthal, 107 Mo. loc. cit. 667, and cases cited.
Finally appellant Leonori, Jr., complains of the insufficiency of the evidence in plaintiff’s case to identify
Appellant Langan assigns for error an instruction that Mrs. Smith had no right as against plaintiff to sell the property under the order of delivery to her in the replevin suit. The instruction was correct. Hawkins v. Taylor, 15 Mo. App. 238 et seq.; Cobby on Replevin, sec. 706 et seq. To support a contrary view the case of Donohoe v. McAleer, 37 Mo. 312, is cited. The language of the learned judge in that case, discerped from the point in judgment, might be taken to mean that after an order of delivery to a plaintiff in a replevin suit he may .exercise full acts of ownership over the goods, and transmit perfect title to the goods in dispute to a vendee, pending the determination of the action. This idea could not have beermintended to be conveyed by the expressions in that opinion. First, because the only point before the court was whether or not a plaintiff was disabled from' further prosecuting a replevin suit because he had in the interim sold the property which had been turned over to him under an order of delivery. The court decided this in the negative. To that extent its decision is not only correct, but authoritative. Secondly, the court in that case could not have meant that the transfer to a plaintiff in a replevin suit under an order of delivery of the property in dispute clothed him with full rights of ownership, for that would be contrary to the well settled rule on the subject, which is that such “order of delivery in replevin confers no title. It gives only a temporary right, which may terminate upon a judgment against
The other points insisted upon on behalf of appellant Langan have been substantially disposed of in the discussion of the assignments of error of appellant Leonori, Jr.
Finding no reversible error in the judgment, it will be affirmed.
(1) As to the claim that defendant Langan had no notice of the rights of plaintiff in the converted property, the answer is that Langan was cognizant of plaintiff’s assertion of title to the goods in question. They were placed in his custody as warehouseman by the party who replevied them from the present plaintiff. He was a witness on the trial of the replevin suit in the court where it was decided in favor of defendant in that action and the plaintiff in this action. His subsequent cooperation in the sale of the goods and surrender of their proceeds to the defeated party was therefore in contravention of the right and title of the true owner as judicially established, of which he was charged with notice by reason of his participation in the trial. It was not justified by Revised Statutes of 1889, section 742, as claimed by the mover. That section was only enacted for the purpose of protecting the innocent holders of warehouse receipts against the transactions of prior parties. In this case the receipt had never passed out of the hands of the person to whom it was given, and Langan as has been shown, was charged with notice of the infirmity of her title, and hence rendered her the
(2) As to the contention of the learned counsel for the mover that the goods delivered to the plaintiff in the replevin suit under the order of delivery became thereby released of legal custody, we have only to reply that the decision of this court to the contrary is cited in the main opinion in this ease, and we see no reason for overturning that rule of law. But as the Kansas City court of appeals has expressed a different view in Coen v. Watkins, 62 Mo. App. 502, this cause will be certified to the supreme court for final determination. It is so ordered.