Staat v. Evans

Mr. Chief Justice Waikeb delivered the opinion of the Court. The declaration in this case contained the usual money counts and a count for goods, wares and merchandise, in addition to the special count. The evidence shows that plaintiff in error had converted the cattle into money. The rule is firmly established, that, if one person converts the property of another into money or money’s worth, the owner may waive the trespass, and recover for money had and received to his use. Even if there was a variance between the evidence and the special count, no reason is perceived why a recovery may not be had under the count for money had and received. The object, usually, in adding the money counts is to avoid the effect of a variance under the special counts. It is insisted that the testimony shows that the cattle belonged to the son of defendant in error. It is true that it does appear that Albert Evans at some time had cattle in possession of plaintiff in error, but it fails to show that it was those in controversy. The evidence seems to show that it was a different lot. He demanded of plaintiff in error a different number, and when the cattle in controversy were demanded by defendant in error, plaintiff in error did not deny that defendant in error was the owner. We are of the opinion that the evidence warranted the jury in finding that the cattle belonged to defendant in error. Plaintiff in error, at the time the demand was made, had possession of the cattle, and it was, therefore, out of the power of defendant in error to have them weighed, so as to ascertain the amount to be paid for feeding them. They had been weighed with other cattle, and defendant in error could not thereby ascertain the weight so as to make a tender of the specific sum due for feediug the cattle. When plaintiff in error offered to deliver the cattle, upon defendant in error paying him for feeding them, unless he had permitted defendant in error to have them weighed, the offer amounted to nothing. But in this form of action we are unable to see that any tender was necessary. If defendant in error did fail to make a tender when it was practicable for him to have done so, will any one contend that he was thereby deprived of his title to the cattle, and that plaintiff in error became the owner. And even if the failure to make the tender had that effect, it could only amount to a sale, and would leave plaintiff in error indebted to defendent in error for their value, with the right to recover under the appropriate common count. If this were an action of replevin for the recovery of the cattle themselves, then a tender would have been essential to a recovery unless the opposite party had rendered it impracticable. Ho objections are perceived to the instructions as given. They announced the law correctly as applied to the evidence in the case. They were not calculated to mislead, nor do we think they did mislead the jury in their finding. Some objections were interposed to the correctness of the amount found by the jury. They seem to have allowed the weight of the twelve head of cattle at the time they went into the possession of plaintiff in error. Eleven head of these weighed 12,525 pounds, and supposing the other was of average weight of the eleven head, it would give a total of 13,662 pounds, and this at two and one-half cents per pound, would give the sum of $341.55; add to this the sum of $61.50 for three years’ interest on the first sum, and we have the sum of $403.05, the amount of the verdict. It appears that the cattle were to be delivered to defendant in error on the 12th day of March, 1859, but the demand was not made until some days later. The trial was had in April, 1862, making full three years between the demand and the trial, for which period it was proper to allow interest. Thus it is seen that the amount found by the jury was correct. We have no hesitation in saying that the verdict of the jury was warranted by the evidence, and the judgment of the Circuit Court must be affirmed. Judgment affirmed.