Dunaway & Lambert v. Stickney

BROWN, J. The evidence shows without dispute that- the plaintiffs purchased the mule in controversy from Will Hinton in May, 1907; that it was the only mule Hinton owned during that year; that at the time of the trial this mule was a hay mule with black legs. The mule described in the mortgage under which the defendant claims is “one sorrel mule colt, Traveller,” and the evidence tended to show that the mule 'purchased by plaintiffs was of a sorrel color in the early part of the year 1907, and that its color had changed to a bay color, that it was named Traveller; but there is no positive evidence that the mule in controversy is the identical mule Hinton mortgaged to the defendant. The defendant testified himself he did not see the mule on which he took a mortgage, and that he never saw the mule in controversy until it was taken from the plaintiffs and delivered to him by the deputy sheriff. (1, 2) While this evidence strongly tends to show that the mule in controversy is the same mule that Hin-, ton mortgaged to the defendant, yet its identity with the mule covered by the mortgage rests in inference to be drawn by the jury from the fact that Hinton only [648] owned one mule, and the name of that mule was Traveller, and the other facts and circumstances in the case.—Stickney v. Dunaway & Lambert, 169 Ala. 464, 53 South. 770; Pantaze v. West, 7 Ala. App. 599, 61 South. 42; Argo v. Sylacauga Mercantile Co., 12 Ala. App. 442, 68 South. 534. Under the ruling of the Supreme Court on the former appeal, the mortgage was properly admitted in evidence. (3) Charge 2, 3, 4, 5, and 6 invade the province of the jury, in that they assume that the mule in controversy was the mule upon which Hinton gave a mortgage to the defendant. For the errors committed in giving these charges, the judgment is reversed, and the cause remanded. Reversed and remanded.