Burt v. Mears

Gill, J.

This case was submitted to the decision of the trial court, without the aid of a jury, and, upon a finding and judgment for defendant, plaintiffs bring the cause here by writ of error. It is an action of replevin for a lot of household goods. The court assessed the value thereof at one hundred dollars, and the plaintiffs having possession thereof at the trial, and the defendant electing to accept the value assessed rather than the return thereof, judgment went against plaintiffs and their sureties on the replevin bond for the said one hundred dollars and costs.

Burt & Gerry, the plaintiffs, are dealers in new and second-hand goods at Kirksville, Missouri ; and in the conduct of their business they seemed to have furnished to defendant Mears, and his mother-in-law, Mrs. Bowen, the household goods in controversy to equip a hotel in said town of Kirksville. Mears & Bowen failing to pay for the goods, and Mrs. Bowen having left the town, plaintiffs took the goods from the possession of Mears by the writ of replevin herein. The only evidence at the trial was that offered by plaintiffs ; and from this it is obvious that the court found a conditional sale by Burt & Gerry to Mears & Bowen, that the goods were purchased on credit, with an agreement that title should remain with plaintiffs until the same were paid for in full, that Mears & Bowen had paid something on the goods, and that, as the evidence showed that plaintiffs had never refunded or tendered anything to said purchasers on account of the partial payments thus made, the' court held that plaintiffs must fail in their action, by reason of the provisions of section 2508, Revised Statutes, 1879. And indeed it is difficult to see how the trial judge could, under the evidence, determine the facts any other way. The alleged “renting” was, clearly, a mere subterfuge.

I. The law governing the rights of the parties is found in sections 2507 and 2508, Revised Statutes, 1879 (now sections 5180 and 5181, revision of 1889). Section 2507 provides that such conditional sales (where the title is to lodge with a vendor until the goods are paid for) shall be' void as to all subsequent purchasers in good faith, and creditors, unless such condition be evidenced by a writing acknowledging and recorded, etc. Whereas section 2508 reads as follows: “Whenever such property is so sold or leased, rented, hired or delivered, it shall be unlawful for the vendor, leasor, renter or deliverer, or his, or their, agent, or servant, to take possession of said property without tendering or refunding to the purchaser, leasor, renter or hirer thereof, or any party receiving the same, the sum or sums of money so paid, after deducting therefrom a reasonable compensation for use of such property, which shall iñ no case exceed twenty-five per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be-allowed.” Clearly then, at the institution of this suit, the plaintiffs were not entitled to the possession of these goods, as they had not returned or offered to return the purchase money so paid, after deducting therefrom compensation for the use thereof and damages, if any, done the same.

II. However this case must be reversed and remanded, because of the error in entering judgment for defendant and against plaintiffs for the full value of the goods in controversy, when, from the undisputed facts, it appears that defendant and his mother-in-law only had a small interest or claim therein. Plaintiffs were the general owners, while Mears & Bowen were only entitled to have returned to them the small amount paid thereon, less compensation for the use thereof and damage thereto. The amount thus paid seems to have been less than thirty dollars. This must be reduced by compensation for use and by any damage done the property while in their possession. So that it may be that defendants may, in fact, have only a nominal interest in the goods. The goods then, subject to this small charge in favor of defendants, are the property of plaintiffs, and it would be unjust and inequitable to award defendants the entire value. In such case he is entitled to recover the extent of this interest in the property and nothing more. See Baldridge v. Dawson, 39 Mo. App. 527, and cases there cited; Boutell v. Warne, 66 Mo. 350; Dilworth v. McKelvy, 30 Mo. 149.

Judgment reversed and cause remanded for a new trial.

All concur.