105 Ky. 70 | Ky. Ct. App. | 1898
DELIVERED THE OPIHIOK OE THE COURT.
The appellant instituted this action in the Hardin Circuit Court against F. M. Joplin, M. A. Berry, and M. H. Williams, and afterwards made R. H. Eskridge a party. The substance of the petition is that plaintiff claimed to be the owner and entitled to the possession of a bay mare, by name “May Hamilton,” of the value of $500, and that defendants had unlawfully converted said mare to their own use, and shipped her to parts unknown, to his damage in the sum of $500. It is also alleged in the petition that he delivered said mare to one B. S. Ozias to train, under a written contract between him and Ozias, which contract is filed as part of the petition, and by which it was stipulated that a half interest in said mare was to vest in said Ozias at the termination of three years’ development. But it is alleged that Ozias did not develop said mare for three years, or at all, and took no interest in said mare under said contract, but delivered her to the defendant Joplin, and he to the defendant Berry, and he to the defendant Williams, who shipped her to parts unknown. That all of said transfers of said mare were made without his knowledge or consent; and the said Ozias at no time had any interest in said mare, and that he did not train or develop her for two years, or any other length of time. Wherefore he prays judgment against defendants for $500. The contract reads as follows: “This contract
It is insisted for appellees that appellant is estopped to assert any claim or interest in the mare in contest, by his actions, and on account of the transaction between him and Ozias, and his allowing Ozias to bring the mare
It is clear from the pleadings and proof in this case that appellee Joplin procured the sale of the mare in contest, and that Berry bid her off for Williams, and turned her over to Williams, and that Williams converted the same to his own use. It does not appear that Eskridge was a participant in the transaction. Taking the whole case together, we are not disposed to set aside the first order granting appellees a new trial; but the court below erred in giving the peremptory instruction to the jury to find for Joplin and Berry, and erred in overruling the appellant’s motion for a new trial in regard thereto. It is clear from the evidence that appellant was entitled to recover one-half the value of the mare at the time Joplin