Shoemaker v. Johnson et al. On examining the two instructions in this case it is clear that the court was directing the jury to find whether or not the contract set up in the petition had been entered into between the parties. Instruction 'No. 1 requires that the jury find the essential elements necessary to be found concerning the express contract and then expressly advises the jury that if they find these facts, which would entitle plaintiff to the sum of $520, they may find for plaintiff in whatever sum they found had then and there been agreed on to be paid not to exceed $520. In one part of the instruction the court requires the jury to find that the defendants were to pay the plaintiff one dollar per acre for the sale of 520 acres of land before they could find the issues for the plaintiff, and then permits the jury in the latter part of the instruction to return a verdict for such an amount, not to exceed $520, that they found was agreed on between the parties. This is somewhat confusing, but the instruction given by the court of its own motion clearly marked the issues in the case which told them that before they could find for the plaintiff against the bank they must find that the defendant had agreed to pay plaintiff one dollar per acre. Now, as stated before, there is no dispute about the number of acres on which the pay was to be based. There is no dispute about whether it was one dollar, fifty cents, twenty-five cents, or any other sum per acre, that was to be paid. The only dispute and the only issue as disclosed in the record before us was whether there was any such special contract made at all. In order for the jury to have found for the plaintiff and against the defendant bank they must have found under the instructions that the bank promised to pay one dollar per acre for the sale or exchange of 520 acres and that the 520 acres had been exchanged and that the plaintiff had fully complied with his agreement, yet the amount allowed in the verdict is illogical and contradicts the finding because it only allows the sum of $150, which, under no process of reasoning could be found to respond to the amount due in case Shoemaker v. Johnson et al. the special contract was made and breached. The cases cited clearly hold that verdicts rendered in such a way are not permitted to stand in this State, the principal reason for this being that juries will not be permitted to do indirectly that which the law prohibits doing directly, the law being well settled that a recovery will not be permitted on the quantum meruit where the suit is based on an express contract, and to permit a verdict to stand which allows an amount which could only be attributed to arbitrary action or an at-tempt to compensate a plaintiff who might have a cause of action had he sued on a quantum meruit would be to violate the principles of law hereinbefore enunciated. It is no answer-in trying to reconcile the verdict in this case with the petition and evidence and instructions-to say that the court did require the jury to find on the special contract in the instructions and that they did so find, because the amount of the finding contradicts any presumption that they did find on the special contract. Presumptions control only in the absence of facts. In this case, can this court presume that the jury followed the instructions and found for the plaintiff on the special contract with the facts staring the jury in the face upon which they could not have found on the special contract under any logical or reasonable ground and placed the damages at $150? To permit this verdict to stand on the record before us allows a plaintiff to base his action upon a special contract, try the case as on a special contract, compel the defendant to try the case defending nothing but a special contract, and then, after the evidence is all in, allows the plaintiff to shift positions and permits a verdict on a quantum meruit to stand. No other reasonable conclusion can be drawn than that the jury did measure the damages as on a quantum meruit. If the plaintiff was willing to stand on the case he pleaded and introduced proof on, the only theory on which he could ask a sum less than $520 would be that he was apprehensive that the jury might not find for him on his special contract-might not find that he had Shoemaker v. Johnson et al. been contracted with in the sum of $520-and with the evidence introduced that he had done some work which benefited defendant in making the sale, he ought to be given some compensation or a reasonable compensation for his service, and therefore he asked the first instruction quoted leaving it to the jury that the amount of his recovery must not exceed $520, which can mean nothing more or less than this: You may allow such sum, not to exceed $520, which to you appears to be just and reasonable (the rule for measuring damages in actions on the quantum meruit) for the service shown to have been rendered by plaintiff. This is unfair to the defendant, because, as stated, it permitted a recovery of the reasonable value of plaintiff's services when no such action was brought or proven, and further unfair to him because he is led into a suit by a petition, driven along in the suit by evidence, and then, after the case is closed is required to stand for a verdict which is in no way responsive to either his theory or that of the plaintiff. If we are to take the abstract before us as to the character of evidence that was introduced we can say there was evidence of but one measure of compensation offered by the plaintiff -that is, that he was to be paid one dollar per acre for the sale of 520 acres, and how any one can say that the verdict is responsive to a theory, supported by all the evidence introduced by the plaintiff, that he had sold 520 acres and earned a commission of one dollar per acre, is beyond the comprehension of the writer, and the only logical conclusion is that the jury attempted to give plaintiff the reasonable value of his services which is a judgment on the quantum meruit, and this, under the law, is not permitted on a petition which seeks recovery solely on express contract. No disposition was actually made in the verdict of the claim as against A. A. Johnson. On a re-trial there should be a verdict rendered as to this claim. Much is said in respondent's brief concerning the failure of the appellant to raise the issue presented here in the motion for a new trial in the circuit court, Cook v. Smith. citing Polski v. City of St. Louis, 264 Mo. 458, 175 S. W. 197, and other cases. We have already set forth some of the grounds alleged in the motion for a new trial one of which was that the verdict was not responsive to the instructions. This seems clearly to indicate exactly the. proposition that is urged in this court. The judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed. Bradley, J., concurs. Sturgis, P. J., concurs in a separate opinion. CHAS E. COOK, Appellant, v. W. C. SMITH, Respondent. Springfield Court of Appeals, June 25, 1918. 1. CHATTEL MORTGAGES: Conversion by Mortgagee. Although first chattel mortgage was voidable, mortgagor could not recover against first mortgagee for conversion of the property where at time of the conversion the first mortgage had not been declared void, and. the property was turned over to the first mortgagee by a second mortgagee in possession thereof under a valid mortgage after condition broken and while a balance was due on the second mortgage, under belief that first mortgagee had prior lien; for, since such surrender was not waiver of the second mortgagee's lien, the second mortgagee was the only one entitled to possession at that time. 2. -: Action by Mortgagor After Condition Broken. Mortgagor of chattels after condition broken is deprived of action of conversion if mortgagee has possession under valid mortgage. 3. TROVER AND CONVERSION: Action: Who May Maintain. For one to maintain conversion he must have possession or have been entitled to possession at the time of conversion. 4. COURTS: Court of Appeals Following Decision of Supreme Court. Courts of Appeals must follow decisions of Supreme Court that, where no other construction can be placed on cause of action than that, it is for wrongful conversion, plaintiff must show at least that he was entitled to immediate possession at time of conversion. BRADLEY, J., dissenting. Cook v. Smith. Appeal from Greene Circuit Court.-Hon. Arch A. Johnson, Judge. AFFIRMED. Hamlin & Hamlin for appellant. Talma S. Heffernan and Watson & Page for respondent. FARRINGTNON, J.-The circuit court rendered a judgment in favor of the defendant and dismissed plaintiff's suit, and plaintiff has appealed. The trial court made the following finding of facts (which it does not appear from the record was requested by either party): day "The court finds the facts to be that Cook was the owner of the property in controversy on the of 191-, and on that day executed a chattel mortgage to the Crighton Provision Company to secure indebtedness owing by plaintiff to the Crighton Provision Company; that thereafter Cook leased the property in dispute to Branson; that afterwards Branson abandoned the property and the Crighton Provision Company took possession of the property in controversy under the chattel mortgage given it by Cook before referred to; that after the Crighton Provision Company took possession of the property the defendant Smith demanded of the Crighton Provision Company possession of the property claiming to have a prior mortgage thereon; that under said demand the Crighton Provision Company delivered to him one ice box of the value of $200, two meat blocks of the value of $15, and other articles to the value of $10, making a total of $225; that in truth and in fact Smith had no mortgage on the property or any claim whatever to it but that said property was Cook's, subject only to the mortgage held by the Crighton Provision Company; that the Crighton Provision Company, upon turning over possession of said property to Smith, |