52 Pa. Super. 299 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff placed a black mare, called “Lillian,” for pasture with John McCloskey, an agistor, at Erden
In the defendant’s appeal, which we are now considering, the only assignment of error is to the refusal of his point for binding direction. It is urged that such direction should have been given because (1) the plaintiff lost title to the mare by abandonment in 1902, (2) the action was barred by the statute of limitations. If the first contention cannot be sustained, it is apparent that the second, which assumes that the statute began to run on the date of the alleged abandonment, cannot be. As has been seen, the action was brought within three years after the alleged conversion of the mare by sale and receipt of the purchase money. Therefore, it was not barred by the Act of March 27, 1713, 1 Sm. L. 76. Nor is that the act relied on by the defendant in his plea. The statute specifically pleaded was the Act of June 24, 1895, P. L. 236. But that act was clearly intended to apply only to cases of injuries to the person which may or may not result in death, and cannot possibly be extended to such an action or cause of action as this: Boyd v. Snyder, 207 Pa. 330.
Abandonment includes both the intention and the external act by which the intention is carried into effect. Ordinarily it is a question of fact to be determined by the jury, under all the circumstances of the case. It is only where all the essential facts are admitted or indisputably proved, and the inferences to be drawn from them are certain and free from doubt, that it can be withdrawn from the jury and the abandonment be declared by the court as matter of law. Here, the plaintiff’s testimony was to the effect that in May,- 1902, the mare being crippled and apparently suffering from some malady, he ordered the agistor to kill her, that he was informed later by him that this had been done, and that he did not learn the contrary until some years later. There was
The judgment is affirmed.