Laughlin v. Barnes & Parrott

Ellison J. This action is for the conversion of forty-four head of cattle, the property of plaintiffs. They recovered judgment in the trial court and defendants appeal. Statement It appears that one Smith stole the cattle from plaintiffs in Kansas and shipped them to defendants who are in the cattle commission business in Kansas City. Defendants sold them at Kan'sas " City, as agents for Smith, to one Aiken, and the latter sold a portion of them to Hull, of Maysvilie, Missouri, and the remainder to a man at Lorimer, Iowa. The cattle were removed by the purchasers from Kansas City to their homes in Maysville, Missouri, and Lorimer, Towa. ’ Plaintiffs haying discovered the theft and learning the cattle had been shipped to Kansas City, immediately went to that place and learned of defendants that they had sold them, Plaintiffs then began a search and were successful in recovering eight yet in the stock yards at Kansas City, twenty-two of Hull, at Maysville and six at Lorimer, Iowa; thirty-six in all. They recovered these by replevin suits and were put to necessary expense in their travels and their litigation amounting to the sum of $219.93. This latter sum was allowed plaintiffs as reasonable and necessary expenses by the trial court as a part of the judgment rendered. That is to say, the trial court deducted from the total value of the forty-four head, the value of the thirty-six head recovered [262] by plaintiffs, less the expense aforesaid, which plaintiffs were put to in recovering the thirty-six head. agent of thiéf: ages ¡expense of recovery. Defendants acted as agents for the thief, but they did not know, and had no reason to believe. he was not the real owner. It is conceded that defendants, notwithstanding they were innocent of intentional wrong m 0 their sale of the cattle, are liable for the value of the cattle less the value of those recovered. But defendants deny that they are liable for plaintiff’s expenses in recovering them. We think they are. The rule is that if one converts another’s property he is liable in the damages to that other for the value thereof. But if the owner secures a return of a part of the property, as in this case, the value of the part returned is a mitigation of the damages and reduces the damages that much, unless the owner has been put to expense in obtaining such return. If he has, the rule expands so that reasonable expenses will be deducted from the value of the property returned and the remainder will be the sum allowed in reduction of the damages. Bank v. Leavitt, 17 Pick. 1; Merrill v. How, 24 Me. 126; Davis v. Best, 50 Hun. 76; Bennett v. Lockwood, 20 Wend. 223; Murray v. Burling, 10 Johns. 172. But defendants claim that expenses can only be allowed the owner when his action is brought against the original wrongdoer, or at least, when the defendant is a.willful wrongdoer. That since in this case the defendants are conceded to be innocent of intentional wrong, did not know the cattle had been stolen and only acted as the innocent agents of the thief. That therefore, plaintiffs’ expenses in securing return of the cattle can not be charged against defendants. We have not been cited to a case where the question was directly involved. Yet we believe the conclusion we have announced is the reasonable and [263] logical result of well recognized and conceded rules governing the liability of one, innocent in fact, but who is guilty of conversion. It is well settled, as before stated, that the innocent agent of a thief is guilty of conversion if he intermeddles with and sells the property of the true owner from whom the thief has stolen it. Koch v. Branch, 44 Mo. 542; Ess v. Griffith, 128 Mo. 50; Bank v. Metcalf, 40 Mo. App. 494. It is conceded that that liability is the full value of the property converted. It must be conceded that the owner is not obliged to go in search or pursuit of the property. It being his right to hold the party converting liable to him for the full value, he may sit down by that right and obtain full redress. But, if he does obtain a return of the property, the party sued in conversion has a right to show that fact in reduction of the damages for which he, unquestionably, is originally liable. Is it not therefore the plainest justice, that the owner’s expenses in thus reducing the damage he had a right to recover, should be deducted from the value of the property returned? The theory of the law is that the' party who converts another’s property must make him whole in damages. The party guilty of the conversion will not be allowed to say “I must not be required to pay him the full value of the property I intermeddled with, since he has gotten apart of it back and has thereby reduced his damage.” But the amount thus reduced is, of course, lessened by the expense incurred in securing the reduction. It seems to me, that keeping in mind the original liability of the party guilty of the conversion'(however innocent in fact he may be) the question of reducing the amount asked in mitigation by the amount of expense in securing the mitigation is made quite plain. Defendants have cited us to Wirt v. Schuman, 67 Mo. App. 163, [264] as a case favoring their views of the question. We think it has no bearing on this case. It is there distinctly recognized that one guilty of conversion, though innocent of intentional wrong, was liable to the true owner. And the decision there was merely that he was under no legal obligation, after he had sold the property to another, to assist such owner in recovering it; and that therefore the owners’ promise to pay him for such assistance was based on a consideration. ~7f:dW¿^lfrre pievm.inre' (2) Defendants interpose in their partial defense that the cattle recovered by plaintiffs were recovered by suit in replevin against the parties to whom they had been sold, and that such recovery was a Ml satisfaction to that extent and therefore barred this action to the extent of the satisfaction. We can not allow any force to this point as applicable to this case. Of course these plaintiffs are entitled to but one satisfaction for their damage in the loss of the cattle. They, therefore, could not now sue for convei’sion, the parties from whom they replevined the cattle, since they have made choice of remedies against them they must stand by that choice and not vex such parties with another suit concerning the same wrong. If they had sued those parties in conversion they would have elected to place the title in them and take damages for compensation. Having elected to retain the title for themselves they merely brought an action for the possession. But recovering the property from third parties did not relieve these defendants of the consequences of their conversion any more than as a mitigation of such consequences. Recovering the possession of the property by suit against third parties can have no more effect on an action against these defendants, than recovering them of such parties without suit.' And so the logic of defendants’ position would drive them to [265] say, that if the owner in any manner secures return of a portion of his property, he loses all right to damage, in respect to that portion, from the party who converted them. Plaintiffs’ petition declared on the facts as they transpired. They set out the loss of the cattle, their conversion by defendants, the recovery of a part, the expenses incurred in such recovery and thus in their petition laid the proper ground for the measure of their damage. -:-:-. (3) Question is made as to the amount of the damage. From the declaration of law given, the court must have found the expense incurred in securing the thirty-six head recovered was reasonable and necessary. Cases may arise where, on account of the extraordinary expense of recovering property, it would be unreasonable to undertake it, but the facts declared here do not present such case. We see no reason for disturbing the judgment and it is accordingly affirmed. Smith, P. J., concurs. G-ill, J., absent.