79 Tenn. 549 | Tenn. | 1883
delivered the opinion of the court.
On March 12, 1881, Hughlett & Pyatt sued out an original attachment against the estate of H. P. Springer, a non-resident of the State, the affidavit for the writ stating (hat Springer was indebted to them in the sum of seventy dollars “ due by account for black walnut lumber that the said H. P. Springer wrongfully took from them, and converted to his own use.” The attachment was issued and levied, and publication made requiring the said Springer to appear on April 21, 1881, before the justice who issued the writ, for a hearing. On April 21, 1881, Hughlett & Pyatt, upon an affidavit that Springer was either the partner or agent of M. J. Huffman, sued out a summons against H. P. Springer and M. J. Huffman to answer them in an action of debt in a sum under .$100, This summons was issued by the same justice of the peace, executed upon Huffman, and made returnable before the justice on the same day. The plaintiffs appealed from the judgment rendered by the justice. In the circuit court, the case was tried by the judge without a jury, who rendered a judgment in favor of the plaintiffs against both of the defendants for the value of the lumber sued for. Huffman alone appealed.
The bill of exceptions shows that after the papers ip the case were read, the plaintiffs and the defendant Huffman introduced oral proof showing the following facts, viz: “Plaintiffs were, as partners, the owners of
The Referees have reported in favor of an affirmance of the judgment' below upon the ground that the bill of exceptions does not show that it contains all the evidence. The settled rule of this court undoubtedly is that where there is a general verdict by a jury and judgment thereon,- on a similar finding by the court, without a jury, and. judgment, if the bill of exceptions fails to show that it contains all the evidence, the court will presume ' that there was sufficient evidence to sustain the verdict. But this rule would, of course, not apply where there was a special verdict of the facts found by the jury, to which the court is asked to apply the law. The reason is that the evidence has accomplished its object when the facts intended to be established is found • by the tribunal to whom that duty is entrusted by law. The same reason is equally applicable to a finding of the facts by the -court, when the court is entrusted by law with that
The suit was commenced by foreign attachment against Springer alone for the value of the lumber in controversy, based upon the implied assumpsit arising from the wrongful conversion of the property by the defendant. The suit was converted into a joint action against Springer and Huffman by a summons based upon the same implied promise. The affidavit upon which the plaintiff was permitted to make Huffman a party assumes the ground that Springer was his agent or partner. This affidavit, although in the record, is no part of it, not being ' incorporated in any bill of exceptions. The trial judge finds that in an action against the defendants, based on the facts of the case, as all of our civil actions are now under the Code,
The argument in support of the position thus taken is rested partly on the decisions of this court which give to ihe action on the implied promise arising from a conversion of personalty all the incidents of any other action ex contractu, and partly on the holdings of the court,, as to the effect of the waiver of a tort on the rights of action of the injured party. But the fact that a suit in a particular form of action must have all the incidents attached by law to that form of action, can have no necessary bearing on the effect of the form of action on the rights or remedies of the plaintiffs. And the holdings of the court on the effect of the waiver of a tort, which have been cited, only go to this extent that if the aggrieved pai’ty after a technical conversion resume possession of the property as owner, or otherwise assents to the tortious taking, the remedy in ' trover is gone: Trayner v. Johnson, 1 Head, 51.; Bell v. Cunmings, 3 Sneed, 275; 2 Greenl. Ev., sec., 642, note 3. He may still sue in case for the tort which he might have treated
The trial judge finds that Springer was guilty of a conversion of the property. Of course, he could communicate no title to a third person, even if he were a bona fide purchaser for value and without notice. Even in such a case the right to recover the property, if in existence, or its value if disposed of by the purchaser would be clear: Price v. Jones, 3 Head, 85. Whether a demand and refusal are necessary to establish a conversion in such cases is left in some obscurity by the authorities.. They are only evidence of a conversion, and are unnecessary where there is other evidence of the conversion: Houston v. Dyche, Meigs, 76. The tendency of our decisions is to limit the
Affirm the judgment.