63 Mo. App. 398 | Mo. Ct. App. | 1895
This is an action by David Rosentreter to recover the possession of a lot of dry goods. The property was taken from the defendant in the city of St. Louis, and delivered to Rosentreter. It was ruled by the circuit court, on demurrer, that the plaintiff’s amended statement failed to state a cause of action.
Omitting the formal parts, the amended complaint reads: “Comes now the above named plaintiff, David Rosentreter, and for amended petition avers that at the time of the institution of this suit he was, and now is, entitled to the possession of the following described personal property as bailee of the constables hereinafter named, who had seized said property under writs of attachment against S. Gasen, to wit: Fourteen boxes and one package and the contents thereof, consisting of clothing, shoes, jewelry, and underwear, said boxes and package having been marked ‘S. Wagehalter, St. Louis, Mo.,’ and being the same carried by the Pacific Express Company from Litchfield, Illinois, to the city of St. Louis, Missouri, on December 23, 1892, and being also the same property received by plaintiff alone from William McCann and B. B. Cassedy, constables of the city of Litchfield, Illinois, on said twenty-third day of December, 1892, and also the same property delivered by the sheriff in this cause to the plaintiff alone on the twenty-fourth day of December, 1892; and that said-property is of the actual value of $750.” Then followed other formal averments, which need not be set out.
One of the grounds of demurrer is want of capacity in plaintiff to sue. Under the averments of the
Upon principle the rule as stated in the cases cited must be correct. It is universally held that a sheriff or constable may place attached property in the hands of a disinterested person for safe keeping. This
There is nothing in the case of Springfield Grocer Company v. Shackelford, 56 Mo. App. 642, contrary to this. The point of decision there was that, in the absence of any affirmative evidence of title, the fact that the plaintiff was in the possession of the goods at the time of their seizure under the writ of attachment was some evidence of title in it. Here it is not averred that Brady took the goods from the plaintiff,. but it does inferentially appear that he took them from the Pacific Express Company. "We, therefore, conclude that, under the allegations in the petition the plaintiff had no right to sue, and that the judgment of the circuit court on the demurrer must be affirmed. Whether the liens of the attachment were lost by the mere removal of the property to this state, we need not decide.
The judgment of the circuit court was against the plaintiff and his sureties for the return of the property,.
The point, that the value of the property as assessed by the jury was excessive, is not well taken. In the original complaint the plaintiff fixed the' value at $1,200. That statement was evidence against him as an admission, and was given in evidence by defendant. The defendant in the attachments, who was the original owner of the goods, estimated their value as high as $1,500. This brings the finding within the evidence, and precludes us from interfering.
Lastly, the plaintiff complains of the following instruction given at the instance of the defendant, viz.: “The court instructs the jury that they may form their estimate of the present value of the goods mentioned in plaintiff’s petition, and of the damages suffered by defendant, after weighing all of the evidence bearing on that part of the case, and that they are not bound by the estimate of any witness or witnesses.” The instruction was complete without the last clause, and the addition of that made it both misleading and incorrect. All of plaintiff’s evidence as to the value of the goods was based on estimates of witnesses who inspected them, and professed to have personal knowledge of their market value. Under the instruction the jury had the right to disregard all such testimony, which it in all probability did, as the amount of the finding indicates that the jury were governed by the sworn statement of plaintiff in the abandoned pleading as to the value of the goods, which, although evidence under the decisions in this state, is evidence of the weakest character. It is only in a limited way that courts
In view of a retrial we deem it proper to call attention to the recent decision of this court, wherein it was held that, if the defeated party having the property in his possession has disposed of it so that it could not be had at the trial, the value should be assessed at the date of the seizure, and not at the date of the trial. Willison v. Smith, 60 Mo. App. 469.
With the concurrence of the other judges, the judgment of the circuit court assessing the damages and determining the value of the property is reversed, and the cause remanded for a new,inquiry of damages. It is so ordered.