Hopper v. Vance

Philips, P. J. It is unfortunate for the plaintiff., in so unimportant a controversy, that he should have-invited the trial court to commit the blunder of giving this declaration of law, as he had proof sufficient to-have warranted the jury in finding a verdict for him without invoking a false principle of law. This instruction in plain terms told the jury that if defendant knew, at the time of his purchase of the land, that the fence-belonged to plaintiff, then the mere fact that defendant afterwards conveyed the land by deed, without any reservation as to the fence, entitled the plaintiff to a verdict. In the first place this was a clear departure from the cause of action stated in the complaint. Even had it been an action in trover, or assumpsit founded thereon, it is not the law that the naked act of conveying the land by deed without any. reservation of the fence gave the plaintiff a cause of action for the value of the fixture. Walsh v. Sichler, 20 Mo. App. 374. The instruction wholly ignores the existence of any contract, as alleged in the petition. We cannot hold, as suggested by counsel for plaintiff, that this instruction was harmless. The conflict of evidence respecting, the contract of sale of this fence, was such as not to-warrant this court in saying this misdirection of the-jury was not probably hurtful or prejudicial to the defence. As the cause is to be reversed for this error, we-deem it well enough to suggest, that, in the further proceeding in this case, the trial court should avoid, in. any instructions given, presenting the act of making a deed by defendant, conveying the premises without any reservation of the fence, as tantamount to an appropriation or acceptance of the fence by defendant. It maybe competent evidence to go to the jury, bearing on the question as to whether the defendant recognized the fence as his under the contract alleged by plaintiff; but [341] for no other purpose. And like any other similar evidence it should not be especially commented on in the instructions, or be excluded by them. The other judges concurring, the judgment of the circuit court is reversed, and the cause remanded for further proceeding in conformity with this opinion.