Cole v. Wabash, St. Louis & Pacific Railway Co.

Hall, J. — The single question presented by the [447] plaintiffs’ abstract of the record and the briefs of both parties, for our determination is, as to the action of the court in refusing the one declaration of law and in giving the other, under the above evidence. It was error for the court to give the declaration of law, in the nature of a demurrer, to the evidence, under the facts in proof which were admitted by the declaration of law to be true. The question was, were the plaintiffs entitled to the immediate possession of the property, at the institution of this suit against the defendant? The defendant contends that this question depended upon the other question, was the defendant’s refusal to deliver the property to the plaintiffs reasonable under the circumstances ? Whether the defendant’s contention is well founded •depends, first, upon whether any demand by plaintiffs upon the defendant for the property prior to the institution of this suit was necessary ; and, second, if such demand was necessary, upon the character of defendant’s refusal, that is, was'it absolute or qualified. I., Section 1018, Revised Statutes, provides: “It shall not, hereafter, be available to a party, as an objection, that no demand for the subject matter of a suit was made prior to its institution, unless it is expressly set up by way of defence in the answer or replication, and is, also, accompanied with a tender of the amount that is •due; in which case, if the plaintiff will further prosecute his suit, and shall not recover a greater sum than is tendered, he shall pay all costs. This provision shall be applicable as well to actions for property as for money ; when property is tendered, the damages for its 'detention, if any, shall also be tendered.” tinder this statute no demand by plaintiffs of defendant for the property, prior to the institution of this suit, was necessary. Battel v. Crawford, 59 Mo. 217; Raithel v. Dezetter, 43 Mo. 145: Lee v. Casey, 39 Mo. 383. As no [448] demand was necessary, so, of course, no refusal of any kind by the defendant, prior to the institution of this suit, was necessary, in order to enable plaintiffs to maintain this suit. II. In the absence of such a statute as the one- above set out, the rule of law is well established that, where the plaintiff has delivered property to the defendant, and the defendant merely detains it, it is necessary for the plaintiff to first make a demand of defendant for the property in order to maintain an action of replevin for the recovery of it. And if the defendant should in such case make a qualified refusal to deliver up "the property upon grounds which are reasonable, he would not be guilty of conversion, and the plaintiff could not, without a compliance with the reasonable grounds of the refusal, maintain replevin for the recovery of the property. But the refusal, in order for it to excuse the defendant, must be a qualified refusal, based upon reasonable grounds ; it must not be absolute. In all cases an absolute refusal by the defendant would constitute conversion, where the plaintiff was entitled to the immediate possession of the property. In Philips on Evidence, it is said: “But where the defendant is proved to be in the possession of the plaintiff’s goods, and on their being demanded, gives an unqualified refusal, he will be guilty of a tortious conversion, unless he can establish an adverse right to the immediate possession. 3 Phillips on Evidence, 540-542; see, also, to the same effect, Rogers v. Weir, 34 N. Y. 469; Ball v. Liney, 48 N. Y. 12; Wells on Replevin, sect. 380. As under our statute no demand or refusal was necessary, and as the refusal made by defendant to the plaintiffs’ demand was absolute, we repeat that the only question in this case is, were the plaintiffs entitled to the immediate possession of the property at the institution of this suit? And we hold that the contention of defendant is not well made. [449] Between the plaintiffs and the defendant the relation, of bailor and bailee existed. As between them the property was the plaintiffs’. “A bailee cannot avail himself of the title of a third person (though the person be the true owner) for the purpose of keeping the property for himself; not in any case where he has not yielded to the paramount title.” The Idaho Case, 93 U. S. 575; Pulliam v. Burlingame, 81 Mo. 119. Of course, the bailee can show that his bailor has parted with his title. Pulliam v. Burlingame, supra; Higgins v. Turner, 61 Mo. 249. And an actual delivery of the property by the bailee to the true owner, upon his demand therefor, will constitute a valid defence against the claim of the bailor. The Idaho Case, supra; Pulliam v. Burlingame, supra; Matheny v. Mason, 73 Mo. 677. But under the evidence in this case, neither had the plaintiffs parted with their title, nor ¡had the defendant delivered the property to the true owner, nor had the defendant yielded to thejjparamount title of a third person. It is not necessary for us to decide whether or not a bill of lading can be made, under section 559, Bevised Statutes, transferable except ‘' by endorsement in writing thereon.” Under the evidence in this case, the plaintiffs sent the bill of lading to Waxelbaum to be held by him as collateral security for their debt to him, upon condition that he would release a certain attachment in Pennsylvania, in which they were interested, and with this condition Waxelbaum did not comply. The bill of lading was, then, not Ms for any purpose, and should have been returned by him to the plaintiffs, but this he refused to do. As to the question whether the plaintiffs can recover the possession of the property, although the bill of lading is in the hands of Waxelbaum, we do not think there is any doubt. Waxelbaum had no right to the bill of lading ; the possession of it, under the facts in proof, gave him no claim to the property; and he had no lien on the property. The plaintiff s ought not in this caseto be [450] required to recover the bill of lading before they can recover their property.” Jones et al. v. Evans et al., 62 Mo. 382. Section 559, Revised Statutes, was not intended for such a case as this. Id. Judgment reversed and cause remanded. The other judges concur in the result in a separate opinion.