91 Ala. 502 | Ala. | 1890
Fields, one of the defendants, having obtained judgment before a justice of the peace against Fortenberry, caused an execution issued thereon to be levied on the property in the complaint mentioned, for the wrongful taking of which the action is brought by Williams. This and other property was sold by plaintiff, January 10, 1888, to Fortenberry, for the sum of $281.50, who executed an instrument in writing, by which he agreed to pay the price by the first day of November, 1888. The instrument provided that the title to the property should remain in plaintiff until paid for. There being an express stipulation in the contract of sale, that the title should not pass until the propert-v was paid for, the transaction was a conditional sale.—Sumner v. Woods, 67 Ala. 139.
The property having been delivered to Fortenberry under the contract of purchase, and being in his possession at the time of the levy, defendants requested the court to instruct the jury, that where personal property is sold, and title reserved in the vendor until the purchase-money is paid, it is subject to levy and sale under execution against the purchaser, to the extent of his interest in the property, while it is in his possession and under his control; also, that if a vendor, making a conditional sale of personal property, retaining title in himself until paid for, surrenders the property into the possession of the purchaser, he can not maintain an action of trespass for injury to the property while in the possession of the purchaser.
The execution was levied November 28,1888, after the time agreed on for the payment of the price had elapsed. The essence of the action of trespass for the wrongful taking of personal property being the injury to possession, unquestionably, the plaintiff, in order to 'maintain the action, must show possession, actual or constructive, at the time of the commission of the wrong. If it were conceded that the contract of sale and delivery of possession thereunder impliedly conferred on Fortenberry the exclusive right of possession and enjoyment in the meantime, there can be no doubt that- plaintiff had the right to resume possession at any time after the expiration of the period for the payment of the price, it being unpaid. Having the general property, which drew to itself the constructive possession — the general property and right to immediate possession at the time of the levy — plaintiff may maintain an action of trespass against defendants, if they tortiously took the property from the possession of Fortenberry, who was in such case his mere bailee.—Walker v. Wilkinson,
The uncontradicted evidence is, that the cows levied on were not taken from the possession of Fortenberry, though sold under execution in December following, at which sale plaintiff bought them, at a sum greatly less than their value; and that the wagon and mules were driven to Blountsville, about twelve miles distant, and restored to the- possession of Fortenberry during the next day. There was evidence tending to show that the mules were injured by immoderate driving, but as to this the evidence was conflicting. On this evidence, defendant asked separate charges as to the measure of damages for levying upon and selling the cows, and for the seizure of the .wagons and mules. The general rule, that in actions of trespass the owner is entitled to recover the value of the property at the time of the trespass, with interest on such valoe, is applicable where he has been wholly deprived of it. When the owner has regained possession before instituting suit, the value is not the measure of damages. In such case, he is regarded as the owner, who has been temporarily deprived of its use; and in the absence of aggravating circumstances, he is entitled to recover only the damages which he may have sustained by such wrongful deprivation, the necessary and reasonable expense, if any other than by suit, incurred in regaining possession, and, if the property has been injured, compensation for such injury — damages equal to the entire loss sustained. This rule is essential to full compensation and complete justice. Voluntary restoration of the property by the wrong-doer does not exempt him from liability for such actual injury as the owner has sustained. It does not go in bar of the suit, but in mitigation of damages only. This is the rule laid down in an action of trover in Ewing v. Blount, 20 Ala. 694, and is equally, if not more applicable, in actions of tresjoass.—2 Sedg. Dam. 526.
'The evidence does not make a case justifying the allowance of vindictive damages. The wagon and mules having been returned to the possession of the plaintiff, and no expense having been incurred by him to regain possession, their hire, or the value of their use while deprived thereof, and compensation for the injury, if any, intermediate the trespass and restoration, is the measure of damages for the seizure and asportation of the wagon and mules. Also, the plaintiff having
The charge, however, in respect to the measure of damages for levying on the cows, was probably calculated to mislead the jury as to the full measure of plaintiff’s right of recovery. They would probably have understood from the terms of the charge, fixing the sum paid as the definite measure of damages, that interest was excluded from the estimate. But the charge respecting the measure of damages for levying upon and taking away the wagon and mules is not obnoxious to the same criticism. It asserts a correct general proposition, in terms broad enough, when referred to the evidence, to afford full and adequate compensation for all injury sustained by plaintiff, and meets the requirements of the law. It does not restrict the right of recovery to a definite sum, but leaves the ascertainment of the amount of damages to the discretion of the jury, as restrained only by the evidence. The charge should have been given.
Applying the foregoing principles, there is no error in refusing the other charges asked by defendants.
It should be remarked, that there is error in rendering separate judgments for different sums against the two defendants found guilty. In a suit against joint trespassers, the judgment must be for a single sum against the defendants as to whom a verdict of guilty is returned. If the jury assess several damages against two or more of defendants, the plaintiff may, at his election, have a venire ele novo, or enter, before judgment is rendered, a nolle-prosequi as to all but one.—Slade v. Street, 77 Ala. 576.
Reversed and remanded.
