130 Ala. 299 | Ala. | 1900
The fact that defendant received the mules from the plaintiff’s possession creates a prima facie presumption of ownership of them by the latter.
A majority of the court hold that the letter, taken in connection with the acceptance by the plaintiff of the terms proposed in it, extended the duration of the bailment until Saturday night and no longer, and that the use of the mule by the defendant on the following' Monday, in the absence of all proof of consent by plaintiff of its use on that day, was unauthorized and, therefore, a conversion for which he is liable in this action. Their opinion is that the proposition contained in the' letter, after its acceptance by plaintiff, became a bind
While I concur in the reversal, I cannot concur in the construction placed upon'the letter by the majority of the court. It is clear, and' for that matter conceded, that it does not embody all the terms of the contract. The only matters involved in the contract between the parties referred to in it, was the change of drivers and a request that defendant be permitted to work the mules the remainder of the week. The original contract was a hiring by the hour, and which could of course be terminated by either party at the end of any hour, and until terminated 'by the one or the other, it continued in force. Construing the letter in the light of all the circumstances shown in evidence surrounding the making of the contract, of which it was a modification, there is nothing in it, which denotes an intention that the defendant was not to have the use of the mules after the expiration of the week. When the purpose for which it was written was accomplished, that of securing to defendant the right to the use of the mules during the remainder of the week, to be driven by the person named in it, in the absence of some positive act or assertion by the plaintiff terminating the bailment, it continued under the original contract- So, then, in mv opinion, the right of the plaintiff to recover in this action is dependent upon whether the mule, alleged to have been converted by defendant, was used 'by him in violation of the terms
Charges 1, 3 and 4 given at the request of defendant, each, in my opinion, assert correct propositions of law and were proper.
In the absence -of evidence tending to show that the plaintiff consented to the use of the mule in the way it was used, -charge 2 given at the request of defendant was error.
Charges 5 and 6 given for defendant asserted his right to use the mule until the plaintiff notified him not to use it longer, notwithstanding his manner of using it may have 'been in violation -of the terms of his contract. If in violation -of the terms of the -bailment, it cannot be affirmed as matters of law that defendant had the right to use it to the prejudice of the plaintiff’s right to recover for its Conversion-
Reversed and remanded.