holding there may be delivery even though the deed remains in the custody of the grantor
How later courts described this case
- holding there may be delivery even though the deed remains in the custody of the grantor
- describing action in replevin to recover goods withheld by bailee
- purchase of certificates of deposit from Bank
Written by the judges who cited it.
The opinion
OPINION CONCURRING IN PART AND DISSENTING IN PART
DONNELLY, Judge.
I concur in all of the principal opinion except the portion which pertains to replev-in of the $5000 savings certificate.
In concluding there was no delivery to defendant of a present interest in the certificate and that plaintiff was the owner and entitled to possession thereof, the trial court erroneously declared and applied the law. In re Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1972).
The principal opinion concedes there was delivery of a present interest in the certificate but then dilutes LaGarce by holding that a bailment was created. It then cites Pulliam v. Burlingame, 81 Mo. Ill (1883) for the proposition that, in a bailment situation, the accepted rule that one joint owner of personal property cannot maintain an action of replevin against his joint tenant does not apply.
I understand Pulliam to hold that where defendant borrowed two mules from plaintiff, and at the time made no mention of any claim to them, he was estopped to claim them against plaintiff. Here, the parties were joint tenants and they both knew they were joint tenants. There is no estoppel here.
Plaintiff may not maintain the replevin action asserted in Count II or the action asserted in Count IV for punitive damages in connection with defendant’s retention of possession of the $5000 savings certificate.
*735 To the extent indicated, I respectfully dissent.
ON MOTION TO AMEND OPINION
PER CURIAM.
In a motion to amend the opinion herein, plaintiff alleges that failure of the opinion to make any statement about liability of defendant to plaintiff for interest on the $20,000 in certificates of deposit held on constructive trust for the benefit of plaintiff has created uncertainty as to whether defendant is liable for interest. Plaintiff is entitled to receive from defendant the interest which defendant has received on said certificates of deposit. McHenry v. Brown, 388 S.W.2d 797, 804 (Mo.1965). Our opinion is amended accordingly.
In view of the fact that the interest rate paid thereon changed at some time and this court does not have sufficient information to enable it to compute the amount of interest due, it is necessary that we remand the case to the circuit court for a determination thereof. Accordingly, our opinion is amended to reverse and remand this case with directions to enter a decree in accordance with the views herein expressed.
SIMEONE, J., not participating.