119 Mo. App. 83 | Mo. Ct. App. | 1906
The defendant is a general storage and Avarehouse company in Kansas City, Missouri, and the plaintiff, then residing at that place, on March 11, 1903, stored Avith it a lot of household goods Avhich she charged it Avith converting and brought this action for conversion. She prevailed in the trial court by a judgment for if434.75.
The defendant sold the goods at public auction and claims the statute (sec. 10571, Revised Statutes 1899)
It is necessary to know the following, to understand the relation between the parties. The storage to be paid was $1.25 per month. But as plaintiff was not going to remain in the city, intending to travel about from place to place and did not wish to be annoyed by remembering and remitting such small sums, it was arranged that when defendant had carried her as long as it was willing it was to notify her of the amount, she to keep the company informed as to her address. She said to defendant’s agent, “Whenever I get to any place or change my address, I will send you immediately my new address, and whenever you feel you must have your money, you will let me know when you want it.”
Afterwards she went from Stearns to St. Louis and on June 22, 1904, she wrote to defendant saying that she had never received a bill on storage and to send her one. To this she received an immediate answer, dated June 23d. This letter plaintiff produced and it read as follows: “Your letter of the 22d inst. has been received, and in reply beg to report that your goods were sold May 20,1904, for storage charges and cost of advertising, and did not sell for enough to cover same.
“These goods were put in here April, 1903, and we not only never received any payment on storage, but we could not find you or get any response to bills or letters. Prior to selling the goods we sent you a notice addressed “City” and another to “1731 Main st.,” and
“We regret that such a course was necessary but we were compelled to protect ourselves.”
Defendant denies ever receiving any but the last letter, which they immediately answered as just set forth.
It will be observed that the evidence of notice to defendant of plaintiff’s address is not direct or positive evidence, it is rather made to depend upon a presumption that in regular course, letters are received by addressees. Tn order to lay a foundation for such presumption, it should be shown that the letter was duly addressed, stamped and deposited in the post office or the place for receipt of letters. That, however, is made to appear sufficiently by evidence that it was “mailed” to the addressee. That a letter to be properly “mailed” to a person must be addressed, stamped and deposited in a proper place for the receipt of mail, and therefore the general statement that a letter was mailed will be sufficient. [Pier v. Heinrichshoffen, 67 Mo. 163; Bank v. Pezoldt, 95 Mo. App. 101.] But while this is allowable, the evidence raising a ^presumption of receipt by the addressee ought not to be itself nothing more than a presumption. Thus, we held in Goucher v. Carthage Novelty Co., 91 S. W. 117, that evidence that a letter properly stamped, addressed and deposited on a table in a lawyer’s office, where the letters of the office were put, it being the duty and custom of the lawyer to mail them, was not sufficient, in absence of evidence that he did mail it. The plaintiff testified that she “sent” defendant her address. Was this by messenger conveying words or car - rying a written communication, or was it by a letter duly mailed? We think it would be unsafe to depart so far as would be necessary to uphold the sufficiency of such evidence.
It is true that plaintiff testified that she “mailed” her letters written in February. But that Avas a mere order for fruit to be delivered to her mother. It did not
We will also add to Avhat is already written that in respect to the notice required by the foregoing statute, we are of the opinion that the expression, “if his address is known,” means, if known, or could be ascertained by reasonable inquiry. We do not believe the statute meant that the warehouseman could take advantage of his lack of actual knoAvledge of the address if the means of knoAvledge were at hand, or information of it could readily be obtained. It therefore might be that evidence of plaintiff’s having mailed defendant a letter from Stearns, Kentucky, in February, 1904, in regard to delivering some fruit to her mother, Avhich defendant answered, Avould, if properly connected with other circumstances, have a tendency to shoAV that defendant could easily have ascertained her address in May Avhen they advertised the goods.
Under the statute aforesaid, we believe that Avhere the property to be sold consists of a large number of separate articles, which may be sold separately, and where some part, materially less than all, can clearly be sold for enough to pay all charges and costs, it is the duty of the warehouseman to sell no more than is reasonably necessary to accomplish that purpose. That if he willfully puts up and sells more than is reasonably necessary, in the situation AAdtich confronts him at the sale, he is guilty of conversion of all thus sold. If he unnecessarily sells all of a large amount of valuable and
As the case is to be retried, it is necessary,to pass upon some other points suggested by the respective counsel. Some errors against the plaintiff appear in the instructions. The case shows a conversion unless there was a legal sale. Tf the sale was illegal and the property sold and passed to others by defendant’s act, there was a conversion and the burden of showing a demand need not be assumed by plaintiff and need not have been alleged by her. A demand is evidential, not creative. [Bank v. Metcalf, 40 Mo. App. 494; Sewing Machine Co. v. Betting, 46 Mo. App. 417; McLachlin v. Barker, 64 Mo. App. 511.] The relation of the parties may be such as to require a demand to bring out the conversion ■ — before the conversion can be made to appear, but that is not in this case. [Wimberly v. Pitner, 66 Mo. App. 638.]
Instructions four and five are somewhat involved in statement, making them liable to confuse the jury. They likewise include hypotheses of matters not in dispute. Such as whether defendant mailed a notice to plaintiff, and whether plaintiff was the owner of the goods, etc. The. case, as made, concedes that no notice of sale was mailed to plaintiff and that she was the owner of the goods.
The judgment will be reversed and the cause remanded.