Hall v. Nix

47 So. 335 | Ala. | 1908

DENSON, J.

Plaintiff filed interrogatories to the defendant (who is a resident of the state), in conformity with the statute (Code 1896, § 1850). On May 4, 1907, on motion of the plaintiff, a judgment by default was entered by the court against the defendant for failure to answer the interrogatories. The proof made on the motion is recited in the judgment entry, and covers every fact necessary to be shown under the statute to give the court jurisdiction to render the judgment. The proof being sufficient, and the rendition of the judgment being a matter within the discretion of the court, the action by the court in rendering the judgment cannot be successfully assailed here.

After the judgment by default was entered, the court properly ordered the execution of a writ of inquiry to ascertain the plaintiff’s damagees. The plaintiff’s right of recovery being established by the judgment, the only questions presented by the bill of exceptions, proper to be considered by us, are those relating to damages.— Curry v. Wilson, 48 Ala. 638; Washington County v. Porter, 128 Ala. 278, 282, 29 South. 185.

The case is trover for the conversion of two diamond rings, which, as the proof showed, were sold by the plaintiff to the defendant, in November, 1905, “at the value of $225.” The contract of sale is in writing, and is set out in the bill of exceptions. The amount agreed to be paid for the rings was to be paid in monthly installments, and the title was reserved in the plaintiff until the entire purchase price should be paid. It is shown without conflict in the evidence that the defendant purchased other items of goods from plaintiff on account; that these items, together with the price agreed to be paid for the rings, amounted to $309; that defendant had plaid plaintiff various sums at different times, but without giving any instructions as to the application of the payments; that plaintiff applied the payments to the account until the same was fully paid, and then credited the balance over ($104.60) on the debt for the rings; that, after giving the credit as stated, there remained due on the rings $124.90, besides interest. The defendant not having directed the application of the sums paid, it was the right of the plaintiff to malee the application as he did. — McCurdy v. Middleton, 82 Ala. 131, 2 South. 721.

Ordinarily the measure of damages in trover is the value of the property at the time of the conversion, with interest to the time of the trial. It may be conceded in this case, that the measure of damages is the amount due on the purchase price agreed to be paid for the rings and interest, unless that amount exceeds the value of the property at the date of the conversion, in which event the amount of the damages would be the value of the property at that date, with interest to the time of the trial. The only evidence in respect to the value of the rings, found in the record, is that which shows that they Avere sold by the plaintiff to the defendant “at the value of $225,” in November, 1905. Assuming that this is evidence from which the jury might infer that the rings were of value at the date of the conversion even to- the extent of $124.90, yet we think it should not have been affirmed by the court as matter of laAV (as was done in effect by the written charge given for plaintiff) that such should be the effect of the evidence. For the reason assigned, it must be held that the court erred in giving the instruction requested by the plaintiff. — A. G. S. R. R. Co. v. Moore, 109 Ala. 393, 19 South; 804; L. & N. R. R. Co. v. Lischkof, 109 Ala. 136, 19 South. 436; Adams v. Thornton, 82 Ala. 263, 3 South. 20.

There was no error in the refusal of the court to give the charge requested by the defendant. On another trial the date of the conversion should be more definitely fixed and the value of the property at that date should be shown.

For the error pointed out, the judgment assessing the . damages is reversed, and the cause is remanded for the execution of a writ of inquiry to ascertain and assess the plaintiff’s damages.

Reversed and remanded.

Tyson, C. J., and Haralson and Simpson, JJ., concur.