Sims v. James

Warner, Chief Justice. The plaintiff brought an action of trover against the defendant to recover the possession of a black mule therein described. On the trial of the case the jury, under the evidence and charge of the court, found a verdict in favor of the plaintiff. The defendant made a motion for a new-trial on various grounds, which was overruled, and the defendant excepted. It appears from the evidence in the record that the plaintiff made a conditional sale of the mule to J. L. Dye, Ellen Fields and A. J. Fields, and took their two notes therefor, one for $100,00, and the other for $70.00, dated 29th February, 1876, and due the 1st of November thereafter, with Charles Walker as security thereon, in which notes it was recited that the same were given for the mule sold, and that she was to belong to the plaintiff until paid for. Dye sold the mule to the defendant, but at what time the record does not disclose. The plaintiff sued the defendant for the mule on the 22d August, 1876. The plaintiff testified that he told the defendant that the mule belonged to him until paid for, before he purchased her from Dye. Walker did not sign the note as security until some time after the others liad signed it. Whether the plaintiff told the defendant before he purchased the mule from Dye that he would not claim her, but would look to Walker for his pay, the evidence is conflicting. 1. The main controlling question in the case is whether the plaintiff had the legal right to maintain his action of trover for the mule at the time the suit was commenced and before the notes became due. If Dye had retained the mule in pursuance of the conditional contract, the plaintiff’s suit for the recovery thereof as against him would have been prematurely brought, but Dye sold the mule before the maturity of the notes, disposed of her contrary to the legal effect of the conditional contract of sale and the understanding of the parties thereto, and when he did that, the plaintiff had the right to treat the contract as rescinded, and to bring [263] his action of trover against the defendant who had converted his property to his own use, and there was no error in overruling the defendant’s motion for a non-suit. 2. In the view which we have taken of the plaintiff’s right to recover against the defendant upon his title to the mule, the evidence of James as to what was his. understanding with Walker when he signed the note, becomes immaterial. 3. In regard to the remarks of the judge in the hearing of the jury, his certificate furnishes a sufficient explanation. 4. The request to charge the jury was not made in writing, and there was no error in refusing it. 5. In view of the facts of this case as disclosed in the record, there was no error in overruling defendant’s motion for a new trial. Let the judgment of the court below be affirmed.