Bryant v. Dyer

1. Replevin: OWNERSHIP: OUTSTANDING TITLE. In action of replevin, if the plaintiff is not sole owner, but merely owner of an undivided part of the replevined property, he can not recover. 2. Contracts: PERFORMANCE: TITLE. Where a party is to have a one-sixth interest in hay if he helps to harvest the same, then his title does not accrue until he has performed the work. 3. -: -: -: POSSESSION: REMEDY. Plaintiff was to harvest defendant’s hay for one-half thereof. The parties met in the field and divided the hay as it stood, by a swath. Defendant’s ' part was to be cut first. This plaintiff did in part and left to do another job. During his absence defendant had the balance of his - part and part of the other harvested by other parties. Plaintiff then returned, and cut the remainder of the part assigned to him,, which he removed, and then brought replevin against the defendant and his harvesters for the remainder of the part assigned to him under the original agreement. Held, as he had never been in possession of the land and had no possession of the part cut by defendant, he could not maintain replevin therefor and his remedy was for breach of contract.

Appeal from Johnson Circuit Court. — ffcw. W. L. Jarrott, Judge. Statement by Broaddus, J. During the month of June, 1900, appellant and the respondent, James D. Dyer, entered into an oral contract by which appellant was to undertake to cut and put up forty acres of timothy and clover hay belonging to- and growing on land owned by the wife of respondent, James D. Dyer, and was to receive the one-half part thereof for putting up the same. On July 2, appellant and said respondent, James D. Dyer, went to said meadow, opened the fence and entered into and upon the same, and divided it by cutting a swath through the center thereof,-from east to west, and said respondent took the north half and the appellant took the south half, and appellant was to put up respondent’s part before beginning on his own. It was agreed, as is shown by the evidence of appellant and witness P. L. Maslin, at the time the hay was divided that appellant should have the privilege of stopping said work and putting up seventy-five acres of flax when the same became ripe. . Appellant cut and put up from ten to twelve acres of said respondent’s portion — filled his barn — and then stopped to cut and put up his flax crop, leaving a small portion of the amount cut in shocks on the ground and also left his mower in the field. He was out seven days putting up the flax, and returned to complete his contract to cut and put up the hay. "While appellant was at work in his crop of flax, said respondent entered into an agreement with respondents, Morrison Downing and Fred Wonderly, and one Miles Dyer, to take charge of and cut the balance of said meadow, the one-half part , for the other, and the said parties took charge of the same and had almost finished the work when appellant returned to complete his contract. Appellant- cut and put up several acres which they had left standing in a strip on the, north half, into ricks; and then demanded possession of the hay which respondents had harvested on the south half — the part claimed by appellant — from respondent, James D. Dyer, after having tendered him the sum of ten dollars "in full payment for the work done by respondents on the north half of said meadow; but he refused to surrender or deliver possession of the same to appellant and to accept said tender. ; ■ Appellant thereupon instituted this action of replevin before a justice of the peace where the cause was tried and appeal taken to the circuit court, in which court there was a trial anew. At the close of the plaintiff’s case defendants filed a demurrer to the evidence which was overruled. At the close of the evidence on both sides the plaintiff dismissed as to Miles Dyer and the defendants renewed their motion for judgment on the grounds that there was a misjoinder of both parties plaintiff and defendant and that he had no property in the hay. This motion was sustained, where-, upon plaintiff took a nonsuit. (1) Prior lawful possession alone is sufficient to maintain replevin as against a wrongdoer or one who can not show a better title in himself. A prior lawful possession is prima facie evidence of ownership. Boot and Shoe Co. v. Bain, 46 Mo. App. 581; Grocer Co. v. Shackelford, 56 Mo. App. 664; Pallen v. Bogy, 78 Mo. App. 97; Shinn on Replevin, sec. 200, page 196, and authorities cited. (2) Having shown a prior lawful possession, and the wrongful taking thereof by the defendants, plaintiff has made out a prima facie case," and is entitled to judgment, unless the defendants show affirmatively, a greater right, in themselves to the possession of said property than the plaintiff has. Randol v. Buchanan, 61 Mo. App. 445. (3) Plaintiff acquired the full and complete possession of the forty-acre tract described in his complaint for the purpose of harvesting the crop growing thereon, and, for said purpose, his possession was absolute and exclusive. This is true whether the party claiming said possession is mortgagor; a tenant, a licensee or a mere trespasser. Adams v. Leap, 71 Mo. 597; McAllister v. Lawler, 32 Mo. App. 92; Avitt v. Farrell, 68 Mo. App. 667. (4) Having taken or acquired possession and control of said premises and the hay growing thereon, it becomes a question of fact for the jury to determine as to whether or not plaintiff lost or abandoned said possession. Adams v. Leap, 71 Mo. 597; McAllister v. Lawler, 32 Mo. App. 92; Grocer Co. v. Shackelford, 56 Mo. App. 664; Shinn on Replevin, sec. 200, p. 196, also sec. 595, p. 535. (5) Whether or not the title passes to the grantee upon delivery is purely a matter of intention of the parties, to be determined by all the facts and circumstances surrounding the transaction and the acts and conduct of the parties. Reissner v. Oxley, 80 Ind. 584; Tiedeman on Sales, sec. 202, page 301, and sec. 83, page 105; 21 Amer. and Eng. Ency. of Law (1 Ed.), page 478, and note 3. (6) The title to plaintiff’s share or portion of the said crop of hay passed to and vested in him upon delivery of possession thereof. Title always passes upon delivery of personal property, unless it be expressly reserved in the grantor, or unless something remains to be done in order to estimate and determine the property sold. Boot and Shoe Co. v. Bain, 46 Mo. App. 581; McAllister v. Walker, 69 Mo. App. 496; Tiedman on Sales, sec. 85, page 116, also sec. 86, page 121; 1 Benjamin on Sales (4 Am. Ed.), sec's. 316 and 317, pages 328 and 327; secs. 331 and 332, page 337; sec. 4Í8, page 392 ;■ see. 421, page 394; People to use v. Sheehan, 77 N. W. 88. (7) The fact that appellant agreed to cut and put up respondent’s (Dyer’s) part first is not a condition precedent, any more than his agreement to fill Dyer’s barn first is a condition precedent. Ober v. Carson’s Ex., 62 Mo. ■209. (1) ‘1 **4 Where the right of action is alleged to be in one, there is a fatal variance where proof shows it to be in two or more.” Upham v. Allen, 76 Mo. App. 206; Thieman v. Goodnight, 17 Mo. App. 429; Deyerle v. Hunt, .50 Mo. App. 541. (2) In order to maintain replevin the plaintiff must have in himself the right of property, general or special, coupled with right of immediate possession. Andrews v. Costican,. 30 Mo. App. 29; Gartside v. Nixon, 43 Mo. App. 138; Poe v. Stockton, 39 Mo. App. 550. (3) “Where the buyer is by contract bound to do anything as a consideration; either precedent or concurrent, oh which the property depends, the property will not pass until the condition be fulfilled.” Abbotts’ Trial Ev., p. 317, sec. 3; Cardinell v. Bennett, 52 Cal. 476; Berry v. Waterman, 71 Miss. 498; 15 So. 234; IT. S. v. Woodruff, 89 IT. S. 863; 21 Am. and Eng. Ency. of Law (1 Ed.), p. 633; Benjamin on Sales (2 Ed.), p. 236. (4) “Where there is only an agreement to sell and not a sale executed, an action for possession can not be maintained; the remedy is an action for damages arising from breach of the contract.” Suggett’s Admr. v. Cason’s Admr., 26 Mo. 221; Cardinell v. Bennett, 52 Cal. 476; Berry v. Waterman, 71 Miss. 498 (15 So. 234). (5) Where it was agreed that defendant should cut and harvest the grass on plaintiff’s lot and receive as compensation therefor one-half the hay so harvested, this did not vest any title in defendant and he was liable for' trespass for taking half claimed by him against plaintiff’s protest; his only remedy was for damages. Woodward v. Conder, 33 Mo. App. 147.