72 Ala. 248 | Ala. | 1882
The only assignments of error in the present record are based on three charges, given bty the court at the request of the defendant. The first and second of these charges present substantially the same question; and that question was directly passed on by this court when this cause was before us at a former term, and was then decided adversely to the plaintiff.—Jones v. Atkinson, 68 Ala. 167. We are satisfied that the conclusion then reached is correct; and we, therefore, hold that the Circuit Court did not err in giving these charges.
2. As a fact tending to show that the plaintiff had ratified the trade made by his bailee, Pritchett, by which he exchanged the mule in controversy for the “ Clanton mare,” the defendant testified, that he was in the quiet possession of the mule, from the latter part of September, 1878, until some time in March, 1879; and that he never heard that the plaintiff claimed the mule, until this suit was commenced. To avoid, no doubt, the force of this evidence, the plaintiff’s counsel, as stated in the bill of exceptions, argued before the jury, that, as he had hired the mulé to Pritchett for a year, he had no right to demand or sue for its recovery until the term of bailment had expired, although Pritchett had, during the term, exchanged it for the mare. This argument is clearly unsound. If the exchange was made during the term of the bailment, without plaintiff’s consent, this amounted to a conversion of the mule, and authorized the plaintiff forthwith to terminate the bailment, and to sue for the recovery of the mule.—Story on Bailments, §§ 396 and 413; Greenl. on Ev. § 642; Nelson v. Bondurant,
Affirmed.