In 1868 David Clarke instituted this suit against A. C. Edwards, in the circuit court of Lauderdale county. The declaration is in trover for a quantity of whisky. Plea, not guilty. Jury and .verdict for defendant, at the February term of that court, 1870. Judgment accordingly for costs against plaintiff, who moved fora new trial, on the following grounds :
1st. The court erred in refusing the first, fourth and sixth instructions asked by plaintiff.
2d. The court erred in giving the instructions asked by defendant.
3d. The jury found contrary to law as charged by the court and the evidence.
4th. The jury made the verdict without any deliberation, and without reading or examining the instructions given by the court, as the plaintiff is proposed to show, and he tenders, with his motion, proof of the fact.
F. V. Oliver, as witness, stated that he was the bailiff of the jury to whom was submitted the case of Clarke v. Edwards, and that said jury took no time to deliberate or examine the instructions of the court given in said case, but on the contrary, hurriedly entered a verdict for defendant, in órder to enable some of said jurors to take the train to Meridian, which at the time was about starting, and that the rea
This motion’was overruled and plaintiff¡excepted.’., Having brought hisopase to this court, the plaintiff here assigns /for error: " . " '
, 1st. Th.at the' court erred in overruling the' motion 'ion 'a new trial,. ¡,. f
2d. Thé"court' erroneously refused to exclude the ..testimony of McKenzie.. ... ,
If A. Prewett testified that, ¡ he was óne *pf the firm of Prewett & Roberts,' formerly' doing. p general'mercantile business in Marion ’; iig 1867 ' plaintiff shipped witness fifteen barrels of whisky, to f be/spld bn 'commission ; he was instructed to sell ’for, cash ; Prewett &, Roberts ¡were owing a debt on a nóte in St. Louis; that nóte had been sent tó defendant for collection; witness, .turnpff oyer to.defendant five .barrels of the whisky'to seethe the said nóte, telling defendant if plaintiiTcálléd for thé .whisky'before tl>é .payment of the note/ the' plaintiff must have it,' ^s it was his property; ÍPr'ewett’&Noberts failed ih.theffalr dr winter' pf 1867, arid went "into bankruptcy^' ’ ' -'
Upon cross-examination, this witness denied having stated to" deferidant’ thafh'e wa's'authoriz'ed to'rise the' W'hitky or its proceeds for tbe"'payment' of his debts,'or. the" debts' of his..’ firm, without the special ¡permission "of h-is principal; plaintiff’ in'this suit; brit'did teli. defendant,'that plain tiff was á parti cp-. lar friend.of his and had' told him if he sold, the whisby and he..wanted to use a portion of'the riion'ey, plairififf "would probably loan hint a .portion of it; arid'ke further1 Stated that he had ño.'authority from plaintiff to rise the' property1 or its.’ proceeds withorit'the special consent'of plain tiff,’ which con-' sent' was never given him. " A¡"short time'aftéhthe whisky was, -turned ovfer,. by Kim 'to ;''defejidhrLt] '''the ’party''ffbm'’''iSt.'; Louis- to whom Pré'#ett''&'"Kob'értá were indebted, Visited"
J. B. Hancock testified that he heard Prewett say to Edwards that the whisky belonged to Olarke, and if Olarke called for it, he must have it; at another time heard Prewett tell Edwards the same, and Edwards said Prewett had told him the same before.
W. E. Alford testified that he was deputy sheriff in 1867; in the fall of that year a writ of replevin was placed in his hands, sued out by Olarke, to remove the four barrels of whisky of Edwards; went to Edwards’ store and asked him about the property; defendant admitted he had the property locked up in his back room, but would not let witness levy upon it.
W. P. Evans testified, that about the time of the failure of Prewett & Roberts, a portion of this same invoice, which was in the store-house of Prewett & Roberts, at the time the assignee in bankruptcy of the firm took possession of their estate, was turned over to witness as the agent of plaintiff, Olarke.
The defendant testified, that in 1867 a claim ^gainst Prew-ett and Roberts was sent him for collection by a house in St. Louis, amounting to about $1,000. Mr. Prewett turned over to him, as security for the debt, five barrels of whisky. When one of the St. Louis firm visited Marion, one barrel of the whisky had been sold, and witness, at the interview between Prewett, witness and the St. Louis man, paid the latter $120, the proceeds of the barrel of whisky sold, on the debt due from Prewett & Roberts, and it was agreed between the parties that the remaining four barrels should remain in possession of the plaintiff twenty days, and if, at the expiration of that time, the debt was not paid or settled, the
On cross-examination, this witness testified that Prewett told him before, and at the time this whisky was pledged that this whisky was sent him to sell on commission by his friend, Olarke, of Mobile, but at the same time told him that Olarke was a particular friend of his, and had sent this-whisky to aid him in the business in which he and Roberts were engaged. Prewett & Roberts gave no notice either by advertisement or in any public manner, that they were agents of Olarke.
John McKenzie, introduced by defendant, testified that Prewett told him in 1867, that a friend of his in Mobile had shipped him fifteen barrels of whisky, and that his friend authorized him to use the proceeds of the same in his business, and as his firm was hard pushed for money, he would sell cheap. The whisky deposited with defendant, was of the same lot Prewett offered to sell witness.
The plaintiff moved to exclude the testimony of the witness McKenzie, from the jury npon the ground that there was no identification by the witness; that plaintiff was the friend Prewett alluded to, which the court refused to do, to which plaintiff excepted.
Our theory of this case renders unnecessary a considerar tion of the numerous questions presented by counsel. It is not disputed that the plaintiff was the owner of the property in controversy, when it was consigned to Mr. Prewett. ■ The consignee was authorized to sell for cash only. Of the ownership of plaintiff, and the agency of Prewett, the defendant
It follows, from the view we take' Of .this'case,; that the’ instructions of "’the bouft to the jury, for the defendant, were effoneous. • We observe'of these, that, as in to,o many cases cOming before us, they are too numerous and objectionable in practicé. Given in such' numbers, they can be but in jib rióüs. 'In this instance, they present'hypothetical cases, un-,’ warrhfit'éd'byí'th'e',!évidé¿c’éi “The? errors'in the instructions,’
The judgment of the court belo.wis.reyejrspd, and, the .cause-,,remanded. , ; j. , . , : ....