30 Mo. App. 163 | Mo. Ct. App. | 1888
This is an action in trover for the' conversion of certain cattle alleged to be the property of plaintiff. The controversy grows out of the following state of facts : The plaintiff, in the summer of 1886, resided in the town of Independence, state of Kansas. He owned a farm about twenty miles therefrom, on which he had said cattle. ■ In the early part of June, 1886, one Watkins made plaintiff a proposition to trade him certain lots in said town for said cattle. There is also, evidence touching a pony owned by plaintiff being included in the negotiation, and some fence wire. The parties agreed upon terms of exchange, to be consummated, as plaintiff contends, on said Watkins making deeds transferring to plaintiff said lots. The pony and wire were delivered about that time to Watkins, who caused a conveyance of one lot to be made to plaintiff therefor. The evidence was, that Watkins was unable to make title to the other lots, as they were held by a bank in said town as security for debts owing to it; and the bank would not convey until Watkins paid off the bank debt. The cattle remained on plaintiff’s farm in charge of his agent or servant
I. The cause was tried by both parties on the theory that plaintiff did own the cattle about.the first of June, 1886. This was necessarily so because the defendants sought to justify their taking of. the cattle through said Watkins by virtue of his contract of purchase from plaintiff. Where the plaintiff is proved.
The circuit court, as indicated by the amendments made by the court to plaintiff’s instructions, as well as those given on behalf of defendant, tried the case on the theory that there was evidence tending to show that Watkins was the person who removed the cattle from plaintiff’s pasture, and that defendants acquired their possession through him. It is error to submit a case to the jury on a theory not supported by the evidence. White v. Chaney, 20 Mo. App. 389-97; Boatmen's Savings Bank v. Overall, 16 Mo. App. 570; Skyles v. Bollman, 85 Mo. 35. There was absolutely no evidence to warrant such instructions. To assume that Watkins carried away the cattle and'sold them is to indulge in sheer speculation and conjecture, which courts in dealing with property interests should never permit. It cannot be maintained that this misdirection, or assumption was not hurtful to the plaintiff. As said in Willis v. Stevens, 24 Mo. App. 505: “The jury, being
II. "Was there really any substantial evidence presented at the trial to justify the verdict of the jury ? The only evidence of any contract of sale between plaintiff and Watkins is to be found, if at all, in the evidence of the plaintiff or his admissions. If the defendants rely for a divestiture of plaintiff’s title upon his own testimony, they must accept that evidence as it is. The plaintiff’s testimony was, that he did have a contract with Watkins about the purchase of fifteen head of cattle, and no more, whereas the defendants got hold of nineteen head. By the plaintiff’s evidence, he agreed only to let Watkins have fifteen head of cattle in exchange for certain lots in the town of Independence. His statement is as follows: “I made an agreement with Watkins, provided he would make me a deed to the lots, I would let him have the cattle. He agreed to give me nine lots for the cattle; other property was with the lots. I got one lot from Watkins. Watkins agreed to give me the lot or pay the money for the pony. I took the lot for the pony and some barbed wire. The pony was worth about forty dollars; the barbed wire was worth about fourteen and ninety-eight hundredths dollars, which I gave for the lot. * * * Watkins and I went-to look at the cattle about the eighth of June. I never had any talk with Watkins about the trade for the lots until we went and looked at the cattle.” In his direct examination he further testified: “ I ■owned the cattle to the ninth of August (the night they were taken away). They were not taken with my knowledge or consent. I never delivered them to the defendants. They never paid me anything for them. No one ever paid me for them. Eight of the lots were in the name “of the Commercial Bank, and they would
III. The defendants claim that further evidence against plaintiff is to be found in a former deposition given by him, which defendants introduced in evidence. There is a question made here by defendants’ counsel that a part of this deposition read in evidence was omitted from the bill of exceptions, and we are asked to consider the omitted part. For the purposes of this inquiry we will concede to defendants all they claim in this respect. The full deposition is as follows:
“Q. Mr. Zwisler, when was it you and Watkins traded cattle for the lots you mentioned? A. I was with him on June 8, but we did not make any bargain;*171 be made some kind of a bargainhe said be would leave tbe cattle there until be made a deed; it was some time in July ; tbe lots were not in bis name; some were in tbe Commercial Bank’s name.”
“Q. After June 8, when did you have anymore talk witb Watkins in reference to this trade? A. He said be would make deed; when I came to Commercial Bank they said I could not trade witb bim. Mr. Guernsey said I bad better not trade, as Watkins could not have tbe lots until be paid for them. Watkins gave me an order on them for tbe lots, but they said be must pay them first.”
“ Q. Did you ever give any one any permission, directly or indireótly, to take these cattle away from your farm ? A. If be would give me' what be said be would, be could take them away. He said he would not take them away unless be did give me something, or, some nine lots. I mean Watkins.”
££Q. Did Watkins give you these lots or convey them to you, or any one of them for you ? A. No, sir,' be did not.”
“Q. Did you ever deliver him these cattle, or direct any one else to deliver them to bim ? A. He promised me from one time to ■ another that be would give me the' deed; be never gave me the deed, so tbe cattle were mine; he never gave me tbe deed or any money. I told Fleener that I said if- be would give me tbe deed, be (Watkins) could have the cattle.”
“ Q. Did Watkins ever give you a deed to these lots you refer to, or any money or other thing of value for these cattle ? A. No, sir; nothing at all.”
££ Q. Did you ever receive any money, or any other thing of value from either of tbe defendants, or from any one else for these cattle ? A. No, sir.”
There is absolutely nothing in all this to warrant a jury in finding there was an unconditional sale of tbe cattle, and that plaintiff bad parted with bis ownership. Tbe fact that’Watkins gave an order on tbe bank for tbe deed furnished no proof of a completed sale, unless the
IY. Nor can any reasonable inference be indulged in favor of. a consummated contract of sale, from the fact that plaintiff, on the assurance of Watkins that he would bring his wife in in three days and make the deed, fold his servant in charge of the cattle to deliver them to Watkins if he came for them. This was a private ■direction to plaintiff ’ s servant based on the assurance of Watkins that he would perform on his part by making ■the deed, and on the assumption that Watkins would not •go out after the cattle until after he had so made the deed. Watkins did not comply, and that was the end ■of the authorization given the servant, and while, if Watkins had applied to the servant and obtained from him the possession of the cattle, in ignorance by the servant ■of the fact that Watkins had not complied with his contract, it would have been a complete justification for the servant, as between him and his master, that, by no principle of law, would have passed the title between plaintiff and Watkins. As to what would have 'been the effect on the title of defendants had the servant so delivered the cattle to Watkins on his demand, . and the defendants had taken title under Watkins, it is not necessary to decide, for the reason that the servant did not turn over the cattle to him, never acted on the authority from plaintiff, and Watkins did not .acquire possession thereunder.
V. It is also claimed by defendants that plaintiff, in a conversation had. with one Wyman, admitted enough to entitle them to the opinion of the jury as to
VI. If this sale was completed it was, at least, as-early as the first of July. Why, then, was plaintiff keeping the cattle for a month ? There is not one word of explanation. The possession of plaintiff at the time* the cattle were taken from his pasture, was prima-facie evidence of title. If Watkins took the cattle under.
VII. Would any court, on the evidence disclosed by this record, permit a jury to find that if these cattle had died in plaintiff ’ s pasture on the ninth day of August, 1886, the loss would have fallen on Watkins ? If not, how can this verdict be sustained that finds that on that day the cattle belonged, not to plain? tiff, but to Watkins ?
VIII. We recognize, in all its breadth, the rule that in trials before juries, where there is any evidence ■which tends to establish the complaint or defence, from which the jury might reasonably infer the essential fact, the court should not take the case from the jury. ■ But it is as equally true, that where there can be no reasonable inference drawn from the facts proveía to uphold the claim or defence, it is the clear duty of the court to say so to the jury, and not permit them, against'law and reason, to confiscate private property.
IX. The instructions given on behalf of defendants, and the amendments already noted as made to the plaintiff’s instructions, improperly placed the case before the jury. For instance, they speak of an “understanding that Watkins was to take possession of said cattle and be responsible therefor;” and “delivered the possession of said cattle to said Watkins under said contract;” and if the cattle were “ taken out of the possession of the plaintiff by one Watkins,” and the like. There ■was no evidence to justify such submissions.
The sixth instruction given for defendants was wrong .as applied to the facts of this case, because it authorized
X. Unless the defendants can materially strengthen their evidence, it would be the plain duty of the court to instruct the jury, to the effect that if they found that plaintiff was the owner of the cattle when negotiations between him and Watkins began respecting the change of the lots for the cattle, the presumption of law is, that he so continues to be such owner; and it devolves on the defendants to show affirmatively that plaintiff has since unconditionally parted with his title therein ; and there is no such proof in this case.
The other judges concurring, the judgment is reversed and the cause remanded.