Traylor & Co. v. Hughes

SOMERVILLE, J. The evidence set out in the bill of exceptions affords no ground of inference that the defendant was guilty of a conversion of the plaintiffs’ goods, such as would render him liable in trover. The property alleged to have been converted was five thousand cigars, which had been shipped by the plaintiffs to defendant some time in the year 1888. The evidence repels any idea of an absolute sale on the one hand, or an unconditional purchase on the other. The contract, however, obviously was, that the plaintiffs would ship the goods to the defendant upon the agreement that he “could take what he wanted at $35.00 per thousand.” ' The receipt of the goods, therefore, made him a bailee, with the option to purchase all, or a portion of them, as he might elect [619] The evidence shows that the plaintiff elected to take about-two thousand of the cigars, and that he packed away the remaining three thousand in his store-house at Decatur. The lot thus stored was appropriated by the public during the yellow fever epidemic, when the defendant was absent from the city, his-store-house, which he left locked, having been occupied by the yellow fever Belief Committee without his consent.- As to the portion of the goods which defendant appropriated, he must be regarded as a purchaser at the price stiputated, under the agreement with the plaintiffs. The taking was a mere exercise of his option to purchase, and must be referred to the consent of the plaintiffs.—Kinney v. South & North Ala. R. R. Co., 82 Ala. 368. As to the remainder of the goods, taken by the public without the knowledge or consent of the defendant, there was clearly no conversion on his part. He was a mere bailee as to this part of the property, and, being without complicity in the act of intermeddling or appropriation by strangers, he was not responsible in trover.—Abraham v. Nunn, 42 Ala. 51; Thweat v. Stamps, 67 Ala. 96. The judge of the City Court did not err in giving the general affirmative charge in favor of the defendant. The verdict first returned by the jury was not responsive to the issues to be tried, and was unauthorized by law. The court did not err in refusing to receive it, or in repeating to the jury its former instructions, in order that they might again retire and make a finding according to law. And this is true, although the counsel of the plaintiff were, at the time, absent from the -court-room. There was nothing in this conduct of the court out of the usual practice in nisi prius trials. The judgment is, accordingly, affirmed.