Prescott v. Jordan

BRICKELL, C. J. This case has been submitted, without argument or brief in support of the assignment of errors. We have nevertheless carefully examined the several rulings of the Circuit Court, to which exceptions were taken, and which are the subject of the assignment of errors, without discovering any error prejudicial to the appellañt. The several charges requested, were properly refused, because’ there is an entire want of evidence on which to base them. The evidence was of a sale of the horse by the appellant; not merely of his right or interest, but of the entire property. In my judgment, if there had been evidence that the sale was of the appellant’s right only and not of the entire property, he would not be relieved from liability. He acquired possession of the horse, with actual notice of the mortgage to the appellee, and upon a promise that he would satisfy it. His duty was satisfaction of the mortgage, or the preservation of the horse, and delivery to the appellee, when the law-day of the mortgage arrived, and the right of the appellee to possession accrued. Any sale, or parting with possession of the horse, incapacitating him to perform this duty, was an illegal use of his right of possession, and of property, and an invasion of the rights of the appellee, rendering him liable for a conversion. On this proposition, my brothers express no opinion. The facts were clear and undisputed (except as to the value'of the horse), justifying the general charge given at [274] the request of the appellee. The measure of damages in trover, as a general rule, is the value of the property at the time of the conversion, with interest thereon. If the value is fluctuating, the jury may take its highest value, at any time between the conversion and the trial.—Jenkins v. McConico, 26 Ala. 213. The evidence seems to have been confined to the value of the horse at the time of the conversion, and the charge of the court that this value, with interest, was the measure of recovery, was not erroneous. Let the judgment be affirmed.