38 Mo. App. 395 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was an action for a conversion of certain personal property consisting of clothing and household furniture. The answer set up, in substance, that the defendant had been appointed receiver, by the circuit coart of the city of St. Louis, of certain real estate, in an action wherein George P. Wolf and others were plaintiffs and wherein the plaintiffs in the present action were defendants ; that the defendant in this action had been, by the order of the court, directed to take possession of certain real estate and collect the rents thereof, and to open, by any proper means, such rooms as were not occupied, and to remove therefrom any chattels found in such rooms and store them in one room of the building. The answer also averred that the defendant was directed, by order of court, to institute proceedings by landlord summons against all occupants of the premises who should refuse to pay rent to him as receiver, and that if, on obtaining execution in such proceedings any chattels belonging to the plaintiff, Catherine Ward, should be found in such rooms, they should be disposed of as above stated; that he did institute such actions against various persons before a justice of the peace, and did obtain judgments and writs of restitution, which, after notifying the plaintiff, Catherine Ward, to
The parties went to trial before a jury, and a verdict and judgment were rendered for the defendant,. from which the plaintiff prosecutes this appeal.
Briefly stated, the plaintiff’s evidence is to the effect that the defendant, with several persons assisting him, entered the premises in which the plaintiff’s clothing and furniture were, and took possession of the premises ; that thereafter she, with two other women, went to the premises to.get some clothing, and the man in charge refused to deliver them to her, telling her that she must see the constable. This testimony is confirmed by the testimony of the man in charge, who was called as a' witness for the defendant. He appears to have been merely a watchman, put in charge of the premises by the constable after the latter had executed the writs of restitution, and there is no evidence that he had any authority from the defendant directly, or from the constable, to do any act touching the turning over of the property to the plaintiff, or to any one else. In fact, the testimony of both sides *on this point, fairly construed, is to the effect that this watchman did not absolutely refuse to surrender any of the property, but
But the plaintiff introduced, other evidence of a demand and a refusal, to the effect that the plaintiff’s attorney had made, as her attorney, a written demand upon defendant for the surrender of the clothing and furniture, which demand had • been presented to the defendant in person by one Bobb, and by the defendant refused. The writing had unfortunately been lost, and the defendant denied in the most positive terms that any such demand was ever made upon him. He also testified that he had endeavored to get the plaintiff to receive the clothing and furniture, which she had constantly refused to do. The plaintiff admitted that, subsequently to the demand made by her upon the watchman in charge of the premises, the defendant had tendered to her the clothing and furniture, but that she had refused to receive them. In other words, upon her own evidence, she persists, by means of this action, in an attempt to sell them to him against his will.
The order of the court, under which the receiver justified, was given in pursuance of a petition to the court by the receiver for instructions, and was as follows : “Now comes■ Leslie A. Moffett, receiver herein, and presents to the court his petition for instructions as to taking possession of the premises, of which, by the order of appointment heretofore made herein, he was directed to and ordered to take possession; and, the court having heard the same, and being fully advised thereof, doth order that the said receiver, in taking possession of said premises, with respect to such rooms as are unoccupied by tenants, may open the same by breaking the locks, or other proper means, and, having obtained actual possession, that he hold the same by all appropriate means; further, that, if any chattels be found in such rooms, notice be given to defendant
The evidence adduced by the defendant is explicitly to the effect that, in all that he did, he proceeded in strict conformity with the terms of this order.
We apprehend that this order was within the power of the court. It is true that a court, having in charge the administration of an estate by means of a receiver, cannot make an order authorizing the receiver to take possession of property not belonging to the estate, and not subject to administration in the suit in which the receiver is appointed; and that, if the court undertake to make such an order, it will be without jurisdiction, and, if the receiver assume to take possession of such property, he will be personally liable as a trespasser. There are many adjudications to the effect that, if a receiver or assignee in bankruptcy takes possession of goods not subject to administration in the proceeding, he will be personally liable as a trespasser. In re Young, 7 Fed. Rep. 855; Curran v. Craig, 22 Fed. Rep. 101; Hills v. Parker, 111 Mass. 511; Paige v. Smith, 99 Mass. 395; Leighton v. Harwood, 111 Mass. 67; Edge v. Parker, 8 Barn. & Cres. 697; Parker v. Browning, 8 Paige, 388. It may, therefore, be assumed
Against the objection of the plaintiff, the court permitted the defendant to give in evidence an order, which the court had made stobsequently to the institution of this suit, directing the defendant to store the goods for the account of the plaintiff, together with evidence of his action in conformity with such instructions. -It is now objected that it was not competent for the defendant thus to support his defense by evidence of something which took place subsequently to the commencement of the action. It is true, as a general rule, that the rights of the parties to an action are fixed according to the state of facts existing at the time when the action was brought. But this rule is not universal.
In actions of trover, if the owner regains his property, the measure of damages is what he has lost by the temporary conversion, and no more. Greenfield v. Leavitt, 1 Pick. (Mass.) 1. And evidence that the defendant has relinquished all claim to the property, that he never removed it from the place where it originally was, and never in point of fact converted it to his own use, lias'been held admissible in mitigation of damages. Delano v. Curtis, 7 Allen (Mass.) 471, 475. The rule seems to be that, if the' defendant came lawfully into the possession of the goods, and his refusal to surrender them was qualified, or if the conversion was technical only, or without wilful wrong on his part, and the property remained entirely in statu quo, the defendant may compel the plaintiff to accept it in mitigation of damages. Pickering v. Trustee, 7 T. R. 53; Hayward v. Seward, 1 Moore & Sc. 459. Where such a state of facts exists, it is plain that evidence that the defendant has tendered the property to the plaintiff is admissible in mitigation of damages; and no reason is perceived why, for the purpose of showing good faith and mitigating the damages, the defendant should not, in such a case, be permitted to show in evidence his continued readiness to restore the property to the plaintiff. Oil this ground we think this evidence was properly admitted.
Among the instructions given at the request of the defendant was the following: “The jury is instructed
This instruction is criticised, first, as denying the right of the plaintiff to recover unless demand was made on the- defendant, and excluding the conclusion that a good demand might be made upon his agent. We do not wish, of course, to be understood as holding that a good demand, such as would be evidence of a conversion, could not be made on the authorized agent of the defendant. To hold otherwise would, in many cases, prevent actions in the nature of trover from being maintained against corporations, which, from their very constitution can only act through agents. We understand the general rule to be that stated .by Mr. Chitty: “The demand should, of course, be in general, made upon the party who, at the ' time, has possession of, the goods, by himself, or his servant or agents, or the general controlling power over them.” 1 Chit. Pl. [16 Am. Ed.] 178. That a good demand may be made upon a person’s servant, acting for him about his business touching the matter of the demand, is shown by the old case of Jones v. Hart, 2 Salk. 441.
But we have already stated that there was no evidence that the watchman in charge of the premises, upon whom the demand of the plaintiff was made, had any authority to act touching the demand; and consequently that may be laid out of view, and there was no error in so drawing an instruction as to put it out of view. It may not be true, as an abstract proposition of
The instruction is criticised, also, on the ground that it denies a recovery unless, at the time of such demand, the defendant was in possession of the goods. The general rule undoubtedly is that a demand and refusal are not evidence of a conversion unless the defendant either has possession of the goods or has them.within his power or control, so that he can restore them in compliance with the demand. Knapp v. Winchester, 11 Vt. 351; Yale v. Saunders, 16 Vt. 243; Morris v. Thomson, 1 Rich. L. (S. C.) 65. The rule in many cases is of value rather as fixing the date of the conversion than otherwise. For where the defendant has put it out of his power to restore the goods in compliance with the demañd, as by selling them, or delivering them to an unauthorized person, the conversion takes place from the date of such sale or unauthorized delivéry, and no demand is necessary. Edwards v. Hooper, 12 L. J. Exch. 304. In the present case there was no dispute that the defendant had possession of the goods, in such a sense that it was within his, power at all times to restore them to the plaintiff. His own testimony fully concedes that, and asserts that he, at all times, endeavored so to restore them. The jury could not, therefore, have been misled by the statement of this general proposition of law in the instruction.
The predicate -in the instruction that, in order to recover, the defendant must have known, when the demand was made, that it was made by, or on the behalf of, the plaintiff, was apparently drawn with the view of meeting some evidence, which cast doubt upon
We see no prejudicial error in the rulings of the court, and the verdict and judgment have obviously reached the justice of the case. The judgment will accordingly be affirmed.