Pallen v. Bogy

BLAND, P. J. The action is replevin for the recovery of a number of oil portraits of the alleged value of $500, begun before a justice of the peace. The defendant in the justice’s court filed the following amended counterclaim: “St. Louis, February 23, 1898. “Conde B. Pallen, to Corinne Bogy, wife of Lewis Bogy, and Eugene Benoist, Dr. “To care and preservation of portraits of, etc., being the portraits levied on in this action, services rendered from 1876 to 1896, in repairing the same and caring therefor......$500.00.” — 93 — In the circuit court, to which the cause was appealed, the defendant, over the objection of plaintiff, filed the following amended counterclaim and answer: “And now come the defendants and for their answer to plaintiff’s statement or petition herein and by way of a counterclaim state that about the year 1876 the owner of the property described in the said statement or petition intrusted the same into the care of defendants and that they undertook the care and preservation of said pictures and continued to render valuable services thereto in their care and preservation and in repairs thereon; that defendants have and still claim a lien upon the said pictures for such care and preservation which they have never waived or abandoned and that such lien existed at the time the same were taken under the writ of replevin herein and that the services rendered by them were continuously rendered from the year 1876 until the year 1896, at- which time defendants intrusted the care of said pictures to one Eliza B. Pallen, deceased, who held the same for them up to the time of her death and that the services which defendants rendered upon and to said pictures were of the reasonable value of five hundred dollars, for which sum they assert a lien against them and pray for possession of said pictures until said lien is satisfied and discharged. “And for another and further defense defendants state that the plaintiff herein has no title whatever to the property, to wit, the seven pictures described in the statement or petition herein; that their father one S. H. Benoist is the lawful owner thereof and that on the 26th day of January, 1898, and at other times the said S. H. Benoist — 94 — authorized and empowered the defendants to take possession of said pictures and authorized and directed them to effect a sale thereof and apply the proceeds of such sale to the satisfaction of a debt then existing between them and to-apply the proceeds also to the payment and satisfaction of certain debts then existing upon defendants’ property which said S. H. Benoist had incurred while he was their trustee, and the defendants therefore state that they are entitled to the possession of said pictures or their value, to wit, the sum of three thousand dollars, and pray for judgment and costs.” On trial de novo in the circuit court the jury found the issues for the defendants, that they were entitled to-the possession of the portraits and assessed their value at $450. A judgment was rendered for defendants on the verdict as found by the jury, from which, after an unavailing motion for new trial, the plaintiff appealed. S. H. Benoist, the father of the defendants, is and was for many years prior to the commencement of the suit, the owner of the portraits. S. H. Benoist is the brother of Eliza B. Pallen, mother of the plaintiff. Mrs. Pallen was-at one time the owner of the portraits. In 1877, Eliza B. Pallen, Conde L. Benoist and S. H. Benoist, executed a written agreement, the object and purpose of which was to transfer the portraits to S. H. Benoist, and to continue their possession in the Benoist family so long as there should be male issue of that family qualified under the agreement to-take possession, but on failure of such issue the portraits were to be returned to Mrs. E. B. Pallen or her eldest son. The portraits when received by S. H. Benoist under the agreement were about two hundred years old, and were in a damaged condition, so much so that they needed the care and skill of an artist to restore and preserve them. Mrs. Bogy, then a girl of about seventeen years of age, possessed artistic talent and skill, and her father, with a view of hav — 95 — ing the portraits restored and properly cared for, placed them in her possession, who then resided and thereafter continued to reside with her grandmother as a member of her family. Mrs. Bogy testified that she took the portraits, covered them with cloth, and hung them up, and then made .a special study of the restoration of ancient paintings, and that after two years study she began the work of restoration, and did restore them; that the work required great care and skill, and that the care of them after restoration required exceeding care on account of the brittleness of the canvas. She further testified that she and her sister (her codefendant) had taken care of the portraits continuously from the time they were delivered to her by her father, until 1896, when she took them to the residence of Mrs. E. B. Pallen •and placed them with her, with the request that she (Mrs. Pallen) keep them for her until she should call for them. The portraits were hung on the walls of the parlor of Mrs. Pallen’s residence, where they remained until taken down .and recovered by the defendants. On May 9, 1897, Mrs. Pallen died; her son, the plaintiff, after the death of his mother, continued in the possession and occupation of his mother’s residence. About January 28, 1898, S. BE. Benoist and his daughter Eugenie Benoist took dinner with plaintiff at his residence. At this meeting there was a discussion of negotiation which had been previously inaugurated looking to a sale of the portraits and other family property. To complete these negotiations it was thought necessary to have the assent of Conde Benoist and the plaintiff was dispatched to the residence of Conde Benoist in another part of the city for the purpose of seeing him about the proposed sale. Plaintiff had some difficulty in finding Conde Benoist, and was absent on this mission for several hours. Mr. S. BI. Benoist also left the house of the plaintiff. After the departure of Pallen and S. BE. Benoist, Miss Eugenie Benoist returned to her home (the home of Mrs. Bogy), — 96 — when she and Mrs. Bogy, procured a surrey, drove to the residence of the plaintiff, and in his absence and without his knowedge or consent took the portraits from their places on the walls of his residence and removed them to the residence of Mrs. Bogy, and refused thereafter to surrender their possession to plaintiff. There is no evidence of an express agreement between S. H. Benoist and Mrs. Bogy, that Mrs. Bogy should be compensated for her services in restoring and caring for the portraits, and there is no such agreement, unless the law will imply one from the facts; there was some evidence both ways on this issue fairly raised by the pleadings, but as the jury were not instructed on this issue and made no finding concerning it, it will not be discussed in this opinion, except as its discussion incidentally occurs in the discussion of other questions in the case. I. The first count in defendants’ amended answer and counterclaim, filed in the circuit court, is but an elaboration of the amended account filed before the justice of the peace, and contains no averment which is not embraced or intended to be included in the amended account filed before the justice; the amendment is clearly permissible under section 6347, Revised Statutes 1889. The second count of the answer, however, introduced an entirely new defense, the defense of a special bailment to defendants with power to sell the portraits and apply the proceeds to the payment of debts due to them from their father and to discharge liens he had created on their property when acting as their trustee. This new defense is expressly prohibited by section 6346, Revised Statutes 1889, and should have been stricken out. II. The right of plaintiff to sue for the recovery of the property is called in question. Eds possession of the portraits was not equivocal. He came into of them fortuitously; his possession was not wrongful, and he was a bailee of the property, holding possession for. the righful owner, — 97 — with his full knowledge and consent. Lawson on Bailment, chapter 2, section 15, and it was his right to defend that possession against all persons interfering with it other than the rightful owner. Lawson on Bailment, chap. 3, sec. 15; Story on Bailment [9 Ed.], 93; 2 Blackstone .Com. 542; Cobbey on Replevin, secs. 133, 423. The action of replevin is a possessory action, and it has long since been the settled law that bare possession of the property in dispute is sufficient title to enable the party enjoying it to maintain the action. Weeks v. Etter, 81 Mo. 375; Smith v. Lydick, 42 Mo. 209; Summons v. Austin, 36 Mo. 307; Springfield Grocer Co. v. Shackleford, 56 Mo. App. 642; Anderson v. Goulding, 53 N. W. Rep. 636; Odd Fellows Hall Ass’n v. McAlister, 11 L. R. A. 172. IH. The defendants obtained possession of the portraits by trespass. The action, however, is not in trespass de bonis asporbatis, but for the restitution of the specific goods. This the plaintiff should have, unless the defendants have shown a superior right to their possession. The right upon which they relied is a factors lien for work, labor and care bestowed upon the portraits extending over a period of years, at the special instance and request of the owner. To substantiate this defense it was incumbent on defendants to prove that the work and labor was done and the care bestowed on the portraits under a contract express or implied with the owner that he should render compensation therefor, and to preserve the lien’it was necessary to show that they they had not voluntarily parted with the possession of the goods. Mrs. Bogy’s testimony tended to show that the portraits were by her delivered to Mrs. Pallen to be temporarily kept for her (Mrs. Bogy). In such circumstances the lien of Mrs. Bogy (if any) on the portraits was not lost, for the possession of Mrs. Pallen was the possession of Mrs. Bogy; nor would the death of Mrs. Pallen while so in possession and the fortuitous possession of the portraits by the plaintiff — 98 — by reason of the death of his mother destroy or impair the lien of Mrs. Bogy or her right of possession for the purpose of preserving and enforcing her lien; but when the plaintiff became bailee by consent of the general owner (S. BE. Benoist) he as such bailee had the right to have the lien established and the value of the lien ascertained. This has long been the settled law in this state. Kerr v. Drew, 90 Mo. 147; Daugherty v. Cooper, 77 Mo. 528; Lewis v. Mason, 94 Mo. 551; Jones v. Evans, 62 Mo. 350; Dilworth v. McKelvy, 30 Mo. 149; Heaps v. Jones, 23 Mo. App. 617; Hickman v. Dill, 32 Mo. App. 509; Campell Print. Press Co. v. Roeder, 44 Mo. App. 324. The plaintiff had the right, if he so elected, at his risk to discharge the lien and retain possession of the property as the bailee of the owner, and to look to the owner for reimbursement; or the owner who was a witness for plaintiff and friendly to plaintiff’s side of the cause, would have the undoubted right to furnish his bailee with the funds necessary to discharge the lien and thus enable him to retain the possession of the portraits as his bailee and subject to his orders. IV. The portraits were taken out of the defendants’ possession by the constable and delivered to plaintiff, who retained possession. On the trial the jury were instructed, if they found for defendants to find the value of the portraits. This they did, and the court rendered judgment on the verdict to the effect that defendants recover the specific property or its assessed value, $450 at their election. This judgment is erroneous and unjust. It is erroneous because it was the duty of the court and jury under the pleadings to find not the value of the portraits, but the value of defendants lien (if any). See authorities cited in the third paragraph of this opinion. It is also erroneous because not authorized by either section 7489 of the practice act, or section 6186, concerning replevin in justice courts. The latter section requires the jury to find the value of defend — 99 — ants’ possession, and under the former there can be no-recovery of the value of the property, unless the defendant “in his answer claims the same and demands a return thereof” (to use the language of the statute) no such claim is made by the answer. Young v. Glascock, 79 Mo. 574; Fowler v. Carr, 55 Mo. App. 145; Balch v. Myers, 65 Mo. App. 422; Chemical Co. v. Nickells, 66 Mo. App. 678. It is unjust because the defendants have recovered the full value of the property in a suit which they expressly alleged ownership in a third party, and also without first establishing by the verdict of a jury that they have any lien or one cent’s worth of interest in the property, wherefore the judgment is reversed and the cause remanded. Judge Bond concurs; Judge Biggs dissents.