49 Ala. 163 | Ala. | 1873
— Tbis is an action of trover for a mule. The appellee, who was. plaintiff in tbe court below, recovered a judgment for tbe value of tbe mule, assessed by tbe jury at one hundred and twenty-five dollars. Erom tbis judgment, Grace, the defendant in tbe court below, appeals to tbis court. Such of tbe errors assigned as it is necessary to consider will be noticed below.
Tbe cause was tried by a jury in the court below. On the trial, there was evidence offered by tbe plaintiff tending to show that the mule sued for once belonged to tbe plaintiff McKissack, and that McKissack sold and delivered it to one Wright, upon condition that the mule was to remain tbe property of tbe vendor until it was paid for, or until Wright gave tbe vendor a mortgage on tbe mule, and on bis crop that he proposed to raise in 1871, to secure the payment of tbe purchase money for tbe mule. Tbe mule bad been delivered to Wright under tbis contract. And tbe defendant, said Grace, offered evidence tending to show that while Wright bad tbe mule in bis possession, be proposed to swap tbe mule to Grace. Upon tbis Grace informed McKissack that be bad an idea of trading for tbe mule with Wright. McKissack made no objection to the trade proposed. After this, upon two occasions, Grace asked McKissack if be bad any mortgage on tbe mule, or any claim upon it, and he replied, that be “ bad no mortgage on him and. did not expect to have any.” It is not stated when tbis occurred, but on tbe 16th day of March, 1871, Grace swapped mules with Wright, and gave him forty-five dollars to boot, and paid tbe same in money. Some three weeks after tbis, Wright ran away. McKissack then offered to buy tbe mule in suit from Grace, for two hundred dollars. McKissack never told Grace that tbe mule was his, nor that be bad any claim to it whatever, until after Wright was gone. There was much other evidence to a similar effect, which it is unnec
1. This charge is evidently intended to interpose the defence of estoppel to pais ; that is, estoppel by the acts and conduct of the plaintiff. This is very clearly a legitimate defence. Brooks v. Martin, 43 Ala. 360; McCravey v. Remson, 19 Ala. 430. In Clements v. hoggins (2 Ala. 518), in a case involving a like principle with this, it is said by Mr. Justice Okmond, “ That the maker of a note, when applied to by one intending to purchase it to know if there is any defence against it, by admitting he has none, thereby precludes himself from after-wards setting up a defence, when sued on the note, which existed at that time within his knowledge, as it would be a fraud on the intended purchaser.” 2 Ala. 514, 518. For like reason, in the case at bar, the plaintiff, when applied to by the defendant in the court below, to know whether he had any mortgage on the mule, or any claim upon it for the purchase money, should have disclosed it. It was his own fault, if not fraudulent, to conceal it. The charge asked was proper, and should have been given.
I have looked over the charges given by the court, which were inserted in the bill of exceptions against the objection of the defendant below, and do not find any one of precisely similar import. The judgment will, therefore, have to be reversed for this error. The second charge asked by the defendant was properly refused. It confines the conclusions of the jury to a partial view of the testimony delivered on the trial, when the proposition of law announced in it had reference to all the proofs. It makes the proof of a single fact in the case — to wit, the failure to insert the mule in the mortgage prepared by the witness Kelly — conclusive of the case. There was other testimony, which tended to give another view of the case, which this charge ignored, and it was calculated to mislead the jury.
3. The error assigned upon the refusal of the motion to set aside the verdict in the court below is not well taken. In a civil suit, this is also a matter of discretion, unless the party complaining show injury, or the violation of some legal right. Irregularities in the conduct of the jury, in such cases, may be grounds for a new trial. But the refusal or denial of a new trial is matter of discretion, and cannot be reached on error. Shep. Dig. p. 698, § 9; Spence v. Tuggle, 10 Ala. 538. Regularly, the jury should not be permitted to separate until they have delivered their verdict; and the verdict should be delivered to the court. 3 Bla. Com. pp. 375, 376; 4 Bla. Com. 360, 361; 10 Bac. Abr. p. 306, Verdict. But how or when it shall be reported to the court is, necessarily, often a matter of discretion; and unless this discretion is abused,to the injury of the party complaining, there is no ground for error. Wright
But for the error first above mentioned, the judgment of the court below is reversed, and the cause is remanded.