Opinion
July 30, 1935.
1. CERTIORARI: Conflict. On certiorari to the Court of Appeals the Supreme Court will not rule on a question of conflict where the Court of Appeals did not construe the petition on the effect of which a conflict is claimed.
2. CERTIORARI: Conflict: Burden of Proof. In an action for damages for the alleged wrongful delivery of maps, printed for plaintiff, to another where the Court of Appeals found that plaintiff voluntarily assumed the burden of proving ownership and ruled that he was in no position to challenge an instruction placing such a burden upon him, the ruling was not in conflict with any decision of the Supreme Court.
WRIT QUASHED.
Sullivan, Reeder Finley, Jones, Hocker, Gladney Jones and Ralph T. Finley for relator.
(1) An agent, bailee or other person who expends labor and money in the production of or care for property at the instance of another is entitled to retain possession of the property until he has been paid therefor. Glover v. Henderson, 120 Mo. 377; Lewis v. Mason, 94 Mo. 558; Carson v. Ely, 28 Mo. 378; Dilworth v. McKelvy, 30 Mo. 149; Paramore v. Campbell, 245 Mo. 316; Nelson v. Luchtemeyer, 49 Mo. 59; State ex rel. v. Walker, 88 Mo. 284. (2) Whether the Von Hoffmann Press was bailee or merely an agent of Schrowang, the possession of Von Hoffmann Press was the possession of Schrowang, and Schrowang was entitled to possession of the maps as against both Norgard and Von Hoffman Press. Erwin v. Arthur, 61 Mo. 386; Williams v. Gray, 39 Mo. 201; Sigerson v. Kahmann, 39 Mo. 206; Swrn. Frt. C.P. Co. v. Stanard, 44 Mo. 85; McGonigle v. Daugherty, 71 Mo. 266; State v. Swift Co., 273 Mo. 462. (3) In permitting the Von Hoffmann Press to set up title in Norgard, without requiring it to assume the burdens of that title as fixed by the rights between Schrowang and Norgard, the opinion contravenes the following decisions of the Supreme Court, which hold that any person claiming under another, by reason of any contract or other engagement, cannot assert any broader or greater rights than such third party could have asserted. Ellis v. Harrison, 104 Mo. 270; Estes v. Reynolds, 75 Mo. 563; Morgan Co. Coal Co. v. Halderman, 254 Mo. 650. (4) In holding that the Von Hoffmann Press was not estopped to deny the title or right of possession of Schrowang, irrespective of the knowledge on the part of Von Hoffmann Press under the special agreement, of the probable claim of Norgard and plaintiff's right of possession as against Norgard, the respondents have contravened the following decisions of the Supreme Court applicable to bailees or tenants who, under such circumstances, cannot dispute the title of the bailor or landlord. Pulliam v. Burlingame, 81 Mo. 111; Wolfe v. Ry. Co., 97 Mo. 480; Loring v. Harmon, 84 Mo. 123; Cherokee Strip Live Stock Assn. v. Cass. L. C. Co., 138 Mo. 394.
Cobbs Logan for respondents.
(1) A writ of certiorari of this court, to review an opinion of one of the Courts of Appeal on the ground that it conflicts with controlling adjudications of this court on the same or a similar state of facts, cannot serve the purpose of a writ of error or an appeal. (a) Insofar as evidentiary facts are concerned, this court will look for these solely in the opinion of the Court of Appeals. State ex rel. v. Daues, 19 S.W.2d 703; State ex rel. v. Ellison, 220 S.W. 501. (b) It is not the province of this court to determine whether the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but only whether upon those facts it announced some conclusion of law contrary to the last previous ruling of this court upon the same or a similar state of facts. State ex rel. v. Cox, 46 S.W.2d 851; State ex rel. Continental Ins. Co. v. Reynolds, 235 S.W. 90. (2) All of the conflicts alleged by relator are based upon decisions of this court which are predicated upon established factual premises, when the same or similar factual premises were sharply disputed in this case and are set forth in the opinion of the Court of Appeals as having not been established as true. (3) The Court of Appeals in its opinion applied the general rule of law that a bailee is ordinarily estopped to deny his bailor's title, except when the defense is delivery to the true owner upon assertion of a paramount title, in conformity with the prior adjudications of this court. Pulliam v. Burlingame, 81 Mo. 117; Wolfe v. Ry. Co., 97 Mo. 480. (4) The Court of Appeals ruled, in conformity with the prior adjudications of this court, that it was not prejudicial or reversible error for the defendant to omit the disputed special agreement and prior notification from its instructions, inasmuch as this was no part of the defense but was a part of plaintiff's affirmative case and plaintiff had fully covered this portion of his case in his own instruction. Bowman v. Rahmoeller, 55 S.W.2d 456; State ex rel. v. Cox, 270 S.W. 114.
Relator seeks to have quashed the opinion of the St. Louis Court of Appeals in Schrowang v. Von Hoffmann Press, 75 S.W.2d 649. The action was for damages on defendant's alleged wrongful delivery of certain maps to Charles J. Norgard. The judgment for defendant was affirmed by the Court of Appeals.
In substance it was alleged in the petition that plaintiff employed defendant to print maps of the city of St. Louis and vicinity; that he delivered to defendant certain materials for use in printing the maps; "that the printing of said maps was to be done for the plaintiff;" that "at the time the defendant was employed to print said maps for the plaintiff, the plaintiff had agreed to print them or have them printed for Charles J. Norgard;" that it was expressly agreed that defendant would deliver the maps to plaintiff and not to Norgard; that plaintiff paid defendant for printing the maps; that defendant delivered a part of the maps to Norgard contrary to agreement and with knowledge that plaintiff was printing the maps for Norgard, whose credit would not justify plaintiff in delivering the maps to him without security; that Norgard disposed of said maps and that he is indebted to plaintiff for the maps, which indebtedness Norgard and defendant refused to pay. The answer was a general denial.
The Court of Appeals construed the petition to allege that plaintiff owned the maps, and said court found that the case was tried on the theory that a relationship of bailor and bailee existed between plaintiff and defendant with reference to the maps.
There was evidence on the part of plaintiff tending to sustain the claim of ownership by plaintiff. On the other hand there was evidence tending to show that Norgard contracted with defendant to print the maps; that he employed plaintiff to perform engraving service; that he agreed to pay therefor and for materials furnished by plaintiff, and that while plaintiff owned certain plates he (Norgard) owned the maps.
Plaintiff's theory of the case was submitted by an instruction which predicated a verdict for him upon a finding by the jury of the facts alleged in the petition. Defendant's theory of the case was submitted by instructions which predicated a verdict for it upon a finding by the jury that Norgard was the true owner of the maps at the time they were delivered to him by defendant.
In presenting the question of conflict, plaintiff assumes that the petition alleged that he had only an interest in the maps for services rendered and materials furnished for use in printing the maps. On this assumption he contends that the opinion of the Court of Appeals is in conflict with certain decisions of this court.
It will not be necessary to rule the question of conflict as presented for the reason that said court did not so construe the petition. As stated, it ruled that the petition alleged that plaintiff was the owner of the maps at the time they were delivered to Norgard by defendant. Plaintiff cites no decision of this court with which said ruling is in conflict. We are not authorized to review the record on the merits.
Relator also contends that the ruling of the Court of Appeals on the burden of proof is in conflict with certain decisions of this court in which it was ruled that if the relationship of bailment existed and the bailee made delivery to a third person as the true owner of the property, he assumed the burden of proving said ownership at the time of such delivery.
The Court of Appeals recognized this rule but found that plaintiff voluntarily assumed the burden of proving that he was the owner of the maps, and for that reason he was not in position to challenge the instruction placing said burden upon him. Plaintiff cites no decision of this court with which said ruling is in conflict.
The writ should be quashed. It is so ordered. All concur.