Darden v. Mann

50 So. 1033 | Ala. | 1909

SIMPSON, J.

This action is by the appellee against the appellants, the first count being in trespass and the second in trover, for the conversion of a horse. The only assignments of error insisted on relate to the giving of charge A at the request of the plaintiff, and the refusal to give certain charges requested by the defendants, unless remarks in the brief of appellants may be considered as insisting on error in overruling the exception to the question to the witness W. B. Walker, “What was Phil Walker worth?”

Phil Walker was one of the defendants, and the claim of plaintiff is that all of the defendants conspired to defraud him of his .horse, by having Phil Walker to come in and offer to give $245 for the Pitts note of $250, mailing the false statement that the father of Pitts was in town for the purpose of paying the note off; that the trade was not actually consummated, but that plaintiff only agreed to make the • trade of the horse for the notes provided said Phil Walker would pay the $245 in cash; and that they deceived him with this promise, until they got possession of' the horse, without his knowledge or consent. It was then, a material circumstance, in reaching a conclusion as to the facts and intention of the transaction, to 'show whether or not Phil Walker’s promise wa.s worth anything. The court erred in giving charge A on request of the plaintiff.

This action is for trespass and trover, and, even though the -defendants had conspired to trade worthless notes to the plaintiff for the horse, yet unless each defendant aided or abetted in the taking, or in the conversion of the horse, or the same was done in pursuance of the conspiracy, he could not be guilty of the taking or conversion, as charged in the complaint. It was a question for the jury to determine, from all the circumstances detailed by the -witness, whether or not Darden, or any of the other defendants, were guilty of the trespass o-r the conversion, and there was no errer in the refusal of the court to give charges B, C, D, and E.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.