First National Bank v. Montgomery

70 Miss. 550 | Miss. | 1893

Cooper, J.,

delivered the opinion of the court.

The insuperable obstacle to a recovery by the plaintiffs, in this action is the want of identification, by the eviderce, of the goods of the plaintiffs which came to the hands of .he defendant, and were by him converted. Not only does ,he evidence fail to show the quantity and character of the siveral articles, or the value of any one of them, but it also fáls to suggest the class to which they or any of them beloig. The whole proof is that out of a stock of goods, such as ire usually kept by a country merchant, the defendant got gocds of some sort of about the value of $175. This, we think, is too indefinite to warrant a recovery in this action.

The plaintiffs counted for the entire stock of goods situatid in their store-house in the town of Bairds. It may be coiceded, for the purposes of this examination, that the description of the property would have been sufficient to supporta verdict if the evidence had shown a conversion of the whole stock by the defendant, or that there was any concerted action between him. and Whitehead, by whom, according to the evidence of.the plaintiffs, the entire stock was converted. In Edgerly v. Emerson, 23 N. H., 555, a very similar description was held insufficient, even after verdict, and the judgment was arrested. But, if the description should be held sufficient, as applied to the whole stock, the difficulty of the plaintiffs’ situation is not obviated, for the evidence tends only to show the conversion of some indefinite quantity of goods, of an uncertain character, worth about $175. It is true the same particularity of description of the property is not now required as formerly, and that less is necessary than in detinue or replevin, in which the specific thing is sought to be recovered. But, though the action of trover is now considered as one for damages, and greater liberality prevails in relation to the description of the property, it is yet necessary that the res, for the conversion of which the action is brought, should be at least generally described in the declaration, and identified by the evidence. It has been held that trover “for four hundred ends of deal-boards” was a sufficient description, because the words had a known meaning to the trade; and so for “ two packs of flax and two of hemp,” without setting out the weight or quantity, and for “ three ricks or stacks of straw,” without alleging the quantity in each, and for “six parcels of lead,” and for “a library, of books,” without- expressing what the books were. Taylor v. Wells, 2 Saunders, 74, and note. But in all these cases the nature of the articles taken is at least generieally given.

The evidence here tends only to show that personal property of some character, such as would be found in a mercantile establishment, of the value of $175, was taken and converted by the defendant. We have been able to find no precedent which would support a verdict on this evidence in an action of trover, and the judgment of the court below must be— Affirmed.

■ Campbell, C. J., being disqualified by reason of interest, took no part in this decision.