Schlossburg v. Willingham

SAMFOBD, J. [1-3] The third count, being in trover, should have averred the time of conversion. Failing in this, was subject to demurrer. Tallassee Falls Manufacturing Co. v. First National Bank, etc., 159 Ala. 315, 49 South. 246; Kilgore & Son v. Shannon & Co., 6 Ala. App. 537, 60 South. 520 But there was no evidence to support a judgment as to the count in trover, and the general finding of the trial court, sitting without a jury, will bo referred to the count supported by the evidence. P. St. A. & G. S. S. Co. v. Brooks, 14 Ala. App. 364, 70 South. 968; Shannon v. Lee, 178 Ala. 463, 60 South. 99. If the defendant desired to be ’ protected from the results of a general finding, he should have moved for a special finding. [4] The defendant moved for a new trial, on the ground that no phase of the evidence justified the finding and judgment. Under one' phase of the testimony, plaintiff was entitled to a judgment of approximately $37.50, under another to a judgment for $100, if the valuations placed upon the items of merchandise by plaintiff were alone considered, and under still another phase, plaintiff was entitled to a judgment for $325; but as to this last, we are of the opinion that the evidence preponderates against it. There was judgment by the court for plaintiff in the sum of $75. Taken alone, as we have said, the valuations under the second phase as above set out, the judgment should have been approximately ,$100; but in fixing the value of the articles the court was bound to consider the testimony of defendant’s witness Allen, whose estimate of value was materially lower upon the items as to which he testified. [5, 6] A [court cannot arbitrate between litigants in deciding eases, but must render judgments on the evidence. When, however, there is evidence to sustain the judgment, the trial court is entitled -to every fair presumption in its iavor. The court did not err in overuling the motion for a new trial. There is no error in the record, and the’ judgment is affirmed. Affirmed.