42 Mo. App. 158 | Mo. Ct. App. | 1890
On June 7,1884, the plaintiff entered into a contract with defendant for the purchase of a steam-traction engine. The contract contained certain ■covenants of warranty. The machine upon trial was ascertained not as it was warranted. On August 5, 1885, the plaintiff elected to rescind said contract, and thereupon demanded of defendant the return of the notes, four in number, given for the purchase money and for the amount of money that had been paid thereon in the first instance. The defendant denied the plaintiff ’ s right to rescind said contract, and refused to return any of said notes or the money it had been paid by the plaintiff. The defendant in the meantime had assigned the first and fourth of said notes, of
The foregoing is an abridgment of the agreed statement of facts, which being quite lengthy is not deemed necessary to set forth here in extenso in order to have a full understanding of the question we have to decide. There were no instructions asked.. The' court upon the agreed statement rendered judgment for defendant, from which plaintiff appeals.
The action is one for trover and conversion. In the case between the same parties, 34 Mo. App. 385, we said that “ the return of the machine by plaintiff to the place where he received it, and the demand and refusal of defendant to make restitution of the purchase money and notes, constituted a wrongful conversion thereof, and in an action on that state of facts the plaintiff would 'have been entitled to recover as the measure of damages the amount of money and notes, or in this case the amount which plaintiff showed that he had been compelled to pay on his notes which defendant had transferred to innocent purchasers.” A refusal to give up personal property or money on demand constitutes a conversion. Nanson v. Jacob, 93 Mo. 331; Neiswanger v. Squire, 73 Mo. 192 ; Huxley v. Hartzell, 44 Mo. 370. The wrongful conversion of the plaintiff’s notes
The face of the notes, with accrued interest, which defendant converted at the time of the conversion, without reference to whether the same had been previously or subsequently transferred to an innocent purchaser, was prima facie the value of them in the absence of any other proof. O' Donnoghue v. Corby, 22 Mo. 393 ; Menkins v. Menkins, 23 Mo. 252 ; Bredoro v. Mut. Sav. Inst., 28 Mo. 181; State ex rel. v. Berning, 74 Mo. 87. And the same rule applies when an action is brought for conversion of a note of the plaintiff by the defendant. Thayer v. Manley, 73 N. Y. (28 Sickles) 305; Comstock v. Hill, 73 N. Y. (28 Sickles) 269 ; Cranch v. White, 1 Bing. (N. C.) 414; Evans v. Kymer, 1 Barn. & Ad. 528 ; Coos v. Clough, 41 Vermont, 290; Chitty on Bills, 248. Thayer v. Manley, supra, was where the defendant by false and fraudulent representations induced plaintiff to execute and deliver to him three negotiable promissory notes, payable one, two and three years from date. Before .either of the notes
If the plaintiff had known that any of said notes were still in defendant’s hands he would have had a perfect remedy by an equitable action restraining the
Our conclusion is that the wrongful conversion of the notes established plaintiff ’ s prima facie right to recover the face value of the same. It is, therefore, quite clear that when the plaintiff’s right of action accrued he was entitled to recover for the conversion of all the notes, and the measure of damages was, prima facie, the face value of the notes. It was wholly unnecessary for the plaintiff to wait in order to ascertain whether defendant had or would transfer the notes to innocent parties for value — whether he did or did not make such transfer was immaterial. The gravamen of his action was the conversion, and the measure of his damages was the face value of the notes which were the subject of the conversion. There was neither occasion nor necessity for making “ two bites at a cherry.” He could have included in his first action all the damages which he claims in his second suit. ‘ It seems to us that the right claimed by the plaintiff to maintain this action cannot be upheld by us without flagrantly disregarding the very wholesome maxims of the common law which have already been quoted'.
Presumably the plaintiff knew, when he brought his first suit, the full measure of the damages which he was entitled to recover. This is not a case where he could be excused for failing to include all his damages in his first suit for the reason there is no element of ignorance of any fact or circumstance, essential to a recovery of all the damages he claims, which he was not in possession of when he brought his first action. There is nothing to show that it was impossible to have included and recovered all the damages that resulted to plaintiff by the defendant’s
We must hold that the damages here claimed could and should have been included in the first suit, and that the defendant’s- plea of res adjudicada upon the principles' to which we have called attention must be sustained.
The judgment of the circuit court will be affirmed.