Richey v. Burnes

Ewing, C. Plaintiff brought suit to recover the possession of certain personal property of the alleged value of four hundred dollars. Burnes answered, denying the allegations of the petition; alleged himself to be the owner of the property, and demanded a return thereof. After all the evidence was in, the court gave the following instruction, at the instance of the defendant: “The jury are instructed that under the pleadings .■and evidence in this case they will find for the defendant, and the jury will, also, assess the value of the property taken at the time, to-wit: the 19th day of April, 1881, as shown by the evidence in this case, the •damages for the taking and detention of the property áre nominal only, and for such damages the jury in their ■verdict will return a nominal sum.” Under this instruction the jury returned a verdict for the defendant and assessed the value of the property at three hundred and fifty dollars. I. This instruction amounted to a demurrer to the ■evidence and in our opinion was erroneous. The plaintiff ’ s ■evidence tended certainly to show a conditional sale. Whether sufficient to establish that fact or not, is not in the province of this court nor of the circuit court to say. The plaintiff testified that he made the trade •“upon the condition that Stumpff would take the mining stock and give me one hundred and fifty dollars, and the house and lot subject to the mortgage.” There was ■other evidence which tended to show a different state of facts, and it was the province of the jury to pass upon the facts and find the truth. In Kelly v. H. & St. J. R. R. Co., 70 Mo. 604, it is ;said: “ In a case where there is no evidence to sustain [365] a material allegation there is nothing for the jury to consider and the court may so declare. But when the facts are disputed, or the credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from facts proven, the case, under proper instructions, should be submitted to the jury. It is for the jury, and not the court, to pass on the weight of evidence, where there is any evidence.” Cook v. H. & St. J. R. R., 63 Mo. 398 ; St. Vrain v. C. B. L. Co., 56 Mo. 590 ; Tutt v. Cloney, 62 Mo. 116 ; Holliday v. Jones, 59 Mo. 484. II. The court erred, also, in giving the instruction directing the jury to assess the value of the property at the time it was taken. “The value of the property at the time of the assessment is the value to be found by the jury.” Mix v. Kepner, 81 Mo. 93; Chapman v. Kerr, 80 Mo. 158 ; Pope v. Jenkins, 30 Mo. 528 The judgment of the court below is reversed and the case remanded. All concur, except Hough, C. J., absent.