Boswell v. Thompson

ANDERSON, J. The defendant proved that he owned the oxen and that Tiller had no authority to «ell them; and, if this was true, the plaintiff acquired no title under his purchase from said Tiller. The plaintiff attempted to show that Tiller was authorized by the defendant to sell the oxen, by proving a certain admission by him to the effect that he had authorized him to sell them. Therefore there was a conflict in the evidence on this point, which was a question for the jury. The admission, being denied and disputed by other evidence, was not conclusive on the defendant; but, even if made by him, he had the right to have the jury instruct [310] ed that said admissions were not conclusive against him. The trial court erred in refusing charge 1, requested by the defendant, and which was not covered by given charge A. The charge cannot be condemned as singling out and giving undue prominence to parts of the evidence, as the plaintiff relied on this admission almost entirely to establish authority in Tiller. Charge 2, requested by the defendant, was. properly refused. If not otherwise bad, it invaded the province of the jury, in assuming that the admission, if made, was “casual,” and it was for the jury to determine whether or not it was “casual.” Charge 4 also invaded the province of the jury, as it was for them to determine whether or not the admission was uncorroborated. Charge 8 was manifestly bad. It is true the statute requires the assessment of each article sued for in detinue separately, when practicable; but we cannot say that there was error in assessing the value of the oxen by the yoke, as the verdict and judgment responded to the complaint and proof. The complaint claimed in yokes, and the value was proven per yoke. — Hammond v. Lusk, 150 Ala. 487, 43 South. 573. This case is distinguishable from the case of Southern Co. v. Johnson, 85 Ala. 178, 4 South. 634. There the complaint described the mules separately, and the affidavit for seizure did the same thing. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and McClellan, Mayfield, and Sayre, JJ., concur.