Pritchard v. Hooker & Nixdorf

JOHNSON, J. Action for damages resulting from the conversion of 1875 railroad ties. Plaintiff recovered judgment in the sum of five hundred dollars and defendants appealed. At the trial plaintiff claimed title to the property under a chattel mortgage, executed by James T. Williams, to secure the payment of a negotiable promissory note for $500,' dated July 1, 1902, due six months after date, and payable to the order of plaintiff. The mortgage was duly filed for record August 30, 1902. The ties are alleged to have been converted by defendants on November 1st, following. The mortgage provided for the possession by the mortgagor of the property conveyed until condition broken, and authorized him to sell the ties and turn over to the mortgagee the proceeds thereof, for payment upon the debt secured. Plaintiff was the only witness introduced and defendants offered no evidence. At the conclusion of the evidence defendants unsuccessfully requested the direction of a verdict for them, and the court ordered a verdict for plaintiff in the sum of five hundred dollars, the amount sued for. We do not agree with defendants that the mortgage, even as to creditors of the mortgagor (which defendants do not claim’ to be) is fraudulent upon its face, on account of the provision for the sale of the property before the maturity of the note. As the proceeds of any such sale are required to be applied upon the debt secured, the authority to sell cannot be construed as a provision for the benefit of the mortgagor. [609] The demurrer to the evidence offered by defendants should have been given for the reason that plaintiff failed in his proof in the following respects: He testified that Williams took the ties to the town of Bagnell and delivered them to a tie company at that point. Plaintiff, after this, went to Bagnell and saw them in possession of one of the defendants, and thereupon served notice upon him, claiming ownership of the property. It is not shown that defendants did not acquire possession by purchase from the mortgagor or his vendee. True, defendants did not disclose their source of title, if they had any, and therefore asserted no claim under purchase through Williams, but the burden was upon plaintiff to establish by proof all of the facts constituting his cause of action, and among them was the fact that defendants’ possession was wrongful. The fact alone that defendants were in possession, claiming ownership of the property, does not tend to prove that they did not rightfully obtain it from the mortgagor, who was, at the time, authorized to sell it. And, further, no competent evidence appears from which the value of the ties, charged to have been converted, may be definitely ascertained. Plaintiff testified to the value of each tie and said that there were 1875 of them, but it appears, from his own admission, that his only source of information, as to the exact number, was a receipt given by the tie company to Williams. Plaintiff must recover, if at all, upon a showing that defendants were trespassers devoid of right derived from Williams or his vendee. If they were, then a receipt for the property, given to the mortgagor by his bailee, is hearsay evidence as to defendants and therefore incompetent. Had these omissions in the essential proof been supplied, the court was not justified in directing a verdict for plaintiff, even with the fact before it that the testimony of plaintiff stood uncontradicted and unim [610] peached. Evidently, the learned trial judge misunderstood the scope of our ruliug in the cases of Bank v. Hainline, 67 Mo. App. 483, and Jenks v. Glenn, 86 Mo. App. 329. In those cases, we held that, when the facts disclosed by the evidence introduced by a party admit of but one interpretation and are not questioned by the opposite party, and the witness by which they are established is not impeached, the court may in its discretion, according to its view of the credibility of the testimony, either submit them to the jury or peremptorily direct a verdict based upon their verity. But the facts of this case do not justify the application of the rule. Plaintiff is seeking to recover the value of converted property. He first testified that the ties were worth twenty-four cents each at the time of conversion, and then, prompted by the suggestion of counsel, said they were worth thirty-four cents. Overlooking the doubt thus thrown upon the correctness of his statement, his testimony, as to value, was necessarily opinion evidence. [Tate v. Railroad, 64 Mo. 149; Stevens v. Springer, 23 Mo. App. 375; Missouri Fire Clay Works v. Ellison, 30 Mo. App. 67.] Expert or opinion evidence is but advisory, and, though uncontradicted, its accuracy should not be assumed by the court, as was done in the giving of this instruction. The jury, under appropriate instructions, should have been permitted to assess the damages. We will add that none of the other substantive facts dependent for proof upon the testimony of plaintiff and the reasonable inferences to be drawn therefrom appear in the record before us to be so indubitably settled as to warrant the court in withdrawing them from consideration of the jury. Though evidence be uncontradicted, if a reasonable doubt may be entertained of the accuracy of the knowledge of the witness relative to facts asserted by him, an issue is raised that should go to the jury. The judgment is reversed and the cause remanded.