Lumsden v. Howard

BRADLEY, J. This cause is in replevin for 319 bushels of corn. Defendant gave a delivery bond and retained the corn. A jury trial resulted in a verdict for defendant, and plaintiff appealed. The petition and affidavit are in the usual form. The answer is a general denial. Plaintiff claims that on March 13, 1920, he bought 350 bushels of corn from defendant, and paid $50 down. Defendant claims that he sold plaintiff no certain number of bushels; that he did sell plaintiff some corn, but that plaintiff got all he bought and all that defendant sold to him. Other necessary facts will appear in the course of the opinion. Plaintiff in effect makes two assignments: (1) That the court erred in giving certain instructions requested by defendant; (2) that certain evidence was erroneously admitted over plaintiff’s objection and exception. .The two instructions complained of' are numbered 7 and 10, and are as follows: “ (7) The court instructs the jury that in case you find from the evidence in the case that Lumsden bought 350 bushels of corn from Howard, to be delivered by Howard, and that Howard was prevented from delivering said corn by Lumsden not being at the place of delivery and furnishing a place for the said corn and that Howard was prevented in delivering said corn therby, then your verdict should be for the defendant. (10) The court instructs the jury that *648 before you can find for plaintiff upon the question of damages, that plaintiff must prove such damages by direct and positive testimony, and that such damages was caused by the wrongful act of the defendant. ’ ’ Defendant lived about seven miles from Canalou where the corn was to be delivered, and defendant brought two loads in, and plaintiff was not present at the minute, and no definite place, according to defendant, had been determined upon where the corn might be put, so defendant sold these two loads to one Daugherty. There was no evidence that defendant brought any more corn except these two loads when plaintiff was not present to receive it, or had not provided a place for it, yet instruction 7 reads like defendant had endeavored to deliver the whole 350 bushels and could not because of plaintiff not being present to receive it, or failing to furnish a place to put it. If plaintiff bought the corn, as he claims, and paid $50 down to bind the bargain, then the title therein passed to him, subject to defendant’s right to the possession — till balance of purchase price was paid, and plaintiff could maintain replevin. [Sec. 2170, R. S. 1919; Woodburn v. Cogdal, 39 Mo. 222; Sikes v. Freeman, 204 S. W. (Mo. App.) 948; Huff v. Henry, 57 Mo. App. 341; Kauffman v. Schilling, 58 Mo. 218; Groff v. Belche, 62 Mo. 400. And merely because plaintiff was not present to receive the two loads and had not provided a place to put the two loads would certainly not excuse defendant for failing to deliver the balance. At most plaintiff’s failure to be present to receive or to furnish a place to put the two loads would affect only these two loads and no more. The evidence discloses that defendant made no effort to find out whether plaintiff had provided a place to put the two loads. If he had it is clear that he would have found a place. But defendant says that he sold these two loads to Daugherty because plaintiff was not at Canalou to receive them and had provided no place. If this were- true then we do not think that defendant could be held for these two loads. Defendant had hauled the corn seven miles, and he was en *649 titled to have a place to unload at Canalou, where he was to deliver, without running the plaintiff down to find a place, and without peddling the neighborhood to find out if plaintiff had provided a place. Plaintiff contends that since the title had passed to him, it made no difference about his absence or failure to furnish place, and to support this contention plaintiff cites Groff v. Belche supra, and Estes v. Harnden, 153 Mo. App. 381, 134 S. W. 43. We are of the opinion that these cases do not support plaintiff’s contention; nor have we found any case to support such proposition. We hold that if plaintiff was not present to receive the two loads of corn, or had failed to prepare a place of which defendant knew then plaintiff cannot recover for the two loads, and on another trial an instruction to this effect should be given if requested. Plaintiff further challenges instruction number 7 on the ground that it is broader than the defense pleaded. He urges that the instruction brings forward the principle of rescission and, rescission not having been pleaded, it was error to give this instruction. We do not think that the instruction submited the principle of rescission, but rather the idea of excuse for failure to comply. Instruction number 10 is challenged on the ground that it requires more than the law with reference to the kind of evidence by which plaintiff may establish his case. Plaintiff did not prove any damages as that term is usually understood in replevin; but such an instruction has no place in this case, and would likely mislead the jury. Plaintiff was not required to prove any part of his case by direct and positive evidence. He might offer any competent evidence whether direct or circumstantial, and was required to prove his case by the preponderance of the evidence. [Bauer Grocery Co. v. Sanders et al., 74 Mo. App. 657; Bowles Live Stock Com. Co. v. Hunter, 91 Mo. App. 333; Culbertson v. Hill, 87 Mo. 553.] In Bowles Live Stock Com. Co. v. Hunter, supra, an instruction told the jury “that the burden of proving the existence of one of the grounds alleged is upon the plaintiff, and proof that plaintiff had good reason to believe, *650 and did believe, in the existence of one or more of the grounds of attachment alleged by him is not sufficient, but it must be proved actually to the satisfaction of the jury that defendant was not a resident of the State of Missouri, that the debt sued for was fraudulently contracted on the part of the debtor, or that the defendant had done or was about to do one of the other acts alleged.” This language was condemned. The court said: “We cannot approve this instruction for the reason that it is at variance with the well-established rule which prevails in this State to the effect that in civil cases the rights of the parties are to be determined by the preponderance of the evidence. It is sufficient for the party having the affirmative of the issue to a verdict that the facts and circumstances tending to prove it outweigh the evidence to the contrary.” Defendant, over plaintiff’s objection, was permitted to prove what he said to Daugherty about bringing the two loads of corn to Canalón for plaintiff, and not being able to find plaintiff, etc. Also defendant was permitted to offer in evidence the two weigher’s receipts for the two loads of corn sold to Daugherty. We can see no bearing that this evidence could possibly have on the issues involved, and it should not have been admitted. Plaintiff further complains that defendant was permitted to testify that at the time of the service of the summons and writ on him he did not have in his possession any corn belonging to plaintiff. It was the province of the jury to determine whether defendant had any corn belonging to plaintiff. Defendant’s statement was no more than a conclusion of his- own, and it may or may not have been prejudicial, but it is the general rule that witnesses are required to state the facts, and that the jury draw the conclusion. The cause should be reversed and remanded, and it is so ordered. Cox, P. J., and Farrington, J., concur.