Nance v. Metcalf

Philips, P. J. I. The first contention of appellant-is, that the plaintiff sued on one cause of action and recovered on another, or that the proofs do not support the allegations of the complaint. There is certainly no difficulty as to the intendment or construction of the complaint. It contains but two material averments: First, that the plaintiff was the owner of the steer in con [188] troversy; and, second, that the defendant converted him to his own nse. The first question then to be determined is, does the proof tend to show that the plaintiff, at the time of the alleged conversion, was the owner of the property ? It is admitted that at one time the plaintiff did own the .steer, and that he sold it to one Rose, and that defendant bought it from Rose. This, then, clearly put the ownership in the defendant. It cannot matter that the steer afterwards strayed from the defendant. He was no less the property of the defendant. It is not essential to the ownership of personal property, and the consequent right of disposition, that the owner should have at the time of sale the actual, manual possession of the property. Whether in the barn, pasture or lot of the owner, or on the commons, it is his property. Did the plaintiff, by reason of the transaction between "him and defendant, become the owner of the steer ? Counsel for appellant argue this question as if it were an indispensable pre-requisite to a valid sale and transfer of ownership of personal property, that it should not only have been in a situation, at the time of sale, to have allowed of actual, manual transfer, but that the vendor did so actually deliver it. I do not so understand the law, as applied to the facts of this case. At common law a bargain .and sale of personal property is defined to be “a transfer of the absolute or general property in a thing for a price in money.” Benjamin on Sales (4 Am. Ed.) 1. And while, if the consideration be other than money — as the giving of other goods in exchange for the thing bought — it would constitute a technical barter, the legal effect is generally the same. The same rules of law apply to both. Benjamin on Sales, 3; Commonwealth v. Clark, 14 Gray 372. All that was essential at common law to the validity of a sale of personal property, “was the mutual assent of the parties to the contract. As soon as it was shown by any evidence, verbal or written, that it was agreed, by mutual assent, that the one should transfer the abso [189] lute property in the thing to the other for a money price, the contract was completely proven, and binding on the parties.” Benjamin on Sales, 5, 6. So Judge Leonard, in Cunningham v. Ashbrook, 20 Mo. 556, said: “The only things essential to a valid sale of personal property at common law, were a proper subject, a price, and the consent of the contracting parties, and when these concurred, the sale was complete and the title passed without anything more. ‘ ‘ The plaintiff ’ s evidence in this case showed that all these requisites were met in the transaction in question.” Not until the adoption of the statute of 29 Charles. 2, c. 3, known as the “ Statute of Frauds,” did the matter of actual delivery become an important quality in the constitution of such contracts. The corresponding provision is found in section 2514 of our Revised Statutes. But this statute has no applicability to' this case. The property in controversy is under the value of thirty dollars, and the purchase money was paid at the time of the negotiation. II. Counsel for appellant suggest that as the plaintiff bargained merely for the chance of finding the steer, he was not then delivered, and was only to be delivered in the future when found, and, therefore, the title did not pass. We are referred in support of this remarkable proposition to the case of Wilson v. Wilson (37 Md. 1), reported in 11 Am. Rep. 518. The case is not relevant. The learned judge was discussing the instance of -property not in being at the time of the contract, to be delivered in futuro. In such case he holds, that the contract is executory, and in such case “no title passes, or is intended to pass by them until actual delivery.” Here the steer was in existence. There was to be no actual or future delivery by the vendor. The obvious meaning and sense of, and evident understanding by the parties to the contract was, that the defendant sold the steer as he was, and the plaintiff took the chance of recovering the possession. III. The further argument is made, if it have any [190] thing of merit in it, that as the parties were under a mutual misapprehension as to the actual condition of the property contracted about at the time, the plaintiff cannot recover because the steer in fact was not lost when sold. If there had been a mutual mistake of both parties as to the subject matter of the contract, there might be a case for equitable interference and relief. No such question was raised by the defendant at the trial, and no instruction was based on any such issue. A party will not be permitted to try the case on one theory below, and then invoke another on appeal here. He must stand or fall by the theory on which he chose to fight below. Whetstone v. Shaw, 70 Mo. 575; Walker v. Owens, 79 Mo. 568. Nor would the justice of the peace have had jurisdiction to try such issue. It belongs to a court of equity. Ridgely v. Stillwell, 28 Mo. 400, 404. As Napton, J., in Rayburn v. Deaver (8 Mo. 105) said: “ Courts of equity are established, whose peculiar province it is to relieve against mistakes and omissions ; but courts of law act on the contracts of parties as they find them.” If, as defendant’s statements put in evidence by the plaintiff, tended to show, as well as part of his and his brother’s evidence, he had the steer' in possession at the time of the barter with plaintiff, and knew this, he would not be heard to assert his own wrong, trick or joke as a defence to this action. The joke was too practical and carried too far. The plaintiff was guilty of no misrepresentation, deceit or strategem to mislead the defendant or inveigle him into the bargain. IY. After this contract of sale, if the defendant sold or caused to be sold, the steer in controversy, this was a conversion, and the plaintiff’s case was completely made. Neiswanger v. Squier, 73 Mo. 198, and cases cited. Under the instructions the jury must be presumed to have found the fact to be that the steer so traded by defendant to plaintiff, was the same afterwards sold by defendant’s brother to defendant’s use. The real issues were fairly enough submitted to the jury by the instruc [191] tions given. We cannot interfere with their conclusion based on conflicting evidence. Y. The first instruction given on behalf of plaintiff is technically wrong, in not laying down the proper rule as to the measure of damages. In the action of trover the measure of damages is the market value of the property at the time of conversion, with interest from that date to the time of trial. Spencer v. Vance, 57 Mo. 427. But as the jury only assessed the damages at seventeen dollars, the lowest valuation placed by any witness on the steer, the error was wholly harmless to the complainant, and in such cases the appellate courts will not reverse therefor. The judgment of the circuit court is affirmed. All •concur.