Smith, Poley & Co. v. Jernigan

STONE, C. J. — The present suit counts in assumpsit. It is claimed for plaintiff, appellee here, that Smith, Poley & Oo. converted to their use certain saw-logs, the property of plaintiff, sawed them into lumber, and sold and disposed of [259] the same. The present action, waiving the tort, sues for the proceeds, as so much money had and received. To maintain such action, there must have been a sale, and the reception of money, or some article or thing as the price or value of the plaintiff’s property. It is not enough, to uphold the present form of action, that defendants have received plaintiff’s property, and withhold it tortiously. — 1 Brickell’s Dig. 150, §229. The bill of exceptions purports to set out all the testimony which tended to show that defendants received or converted any of the plaintiff’s saw-logs; and there was no positive testimony of any sale of lumber produced from them. If there was such sale, it had to be inferred from the known, usual course, in such line of business, and from the lapse of time. The record speaks of Smith, Poley & Co., and also of B. F. Poley. It is not shown whether or not the latter was a member of the firm of Smith, Poley & Co. Sometimes very important inferences are drawn, when there is no direct proof of the fact. The distinction is between mere conjectures, and inferences which the facts and circumstances naturally suggest. It is no more the duty of the jury to refrain from supplying missing links in the testimony by mere conjecture, than to draw such inferences as arise naturally and satisfactorily out of the facts and circumstances in proof. To reach the truth, the naked truth, should be the aim, the pole-star to guide juries in their deliberations. , We find no error in the charge given by the court of its own motion, nor in the charge given at the request of the plaintiff. The defendants requested six several charges, which were in writing. They were all refused, and a separate exception reserved to each refusal. We have numbered them in the order in which they were asked. Charges one and two were misleading, in this, that.their tendency would be, if given, to create the impression, that some positive testimony was required that the defendants had received for the lumber either money, or something in the place of it. The charges given stated the rule correctly. Charge three would have been correct, if it had not stated as a fact that B. F. Foley was not a party to this suit. In the stats this record is in, we can not know that such is the fact. It should have been stated hypothetically. Charges five and six should have been given, while charge [260] four would probably have misled the jury. The exact amount received would frequently be difficult of proof, and is not a condition of the plaintiff’s right of recovery. The jury, in such case, should give as damages such sum as they are reasonably satisfied the defendants received, and no more. Reversed and remanded.