44 W. Va. 88 | W. Va. | 1897
In tbe fall of 1893 John Patton was at Fairmont, and broke an attachment to a wheel of his sulky. F. N. Hays wanted the sulky to go to Cumberland, Md., to a fair, and in consideration of the use of it a few days for that purpose he repaired the attachment, and was to return the sulky to Patton, but, instead of doing so, Hays pledged the sulky to M. A. Joliff for a loan of forty dollars, and placed him in possession of it. Patton, learning that Joliff had his sulky, went to see him, and found him so in possession. Joliff told Patton that he had loaned Hays forty dollars, and had the sulky in pledge ; that he wanted to keep the sulky until he got his money out of Hays, and wanted Patton to help him get it; that he would be personally responsible to Patton for the sulky, and would ship it to Clarksburg, to Walter Sedgwick,, for him; and asked Patton to write to Hays about it, which he did. In the following June, the sulky not having been sent to him, Patton went to Fair-mont after it, when Joliff refused to give it up, and Patton instituted an action of detinue therefor before Justice John Fisher. The case was tried, and judgment rendered for plaintiff. Defendant appealed the case to the intermediate court of Marion county, where it was tried before a jury, and verdict and judgment rendered for defendant. Plaintiff applied to the circuit court of Marion county for, and obtained, a writ of error and supersedeas to the judgment of the intfermediate court, and upon the hearing of said writ the circuit court affirmed the judgment of the intermediate court, and rendered judgment on the 6th day of December, 1894, for the defendant. From this judgment, the plaintiff, John Patton, obtained from this Court a writ of error and supersedeas.
On the trial of the cause the plaintiff offered in evidence a letter written by F. N. Hays to plaintiff, dated November 16, 1893, which, on objection by defendant, was excluded by the court, to which plaintiff excepted. On motion of the defendant, the court gave the following instructions to the jury, numbered 2 and 4, respectively, as follows : Instruction No. 2 : “Although the jury believe from all the evidence that the sulky in question was
The letter was properly excluded. Communications between plaintiff and Hays could not be introduced as evidence against defendant, who would not be bound by the admissions and unsworn statements of his pledgor, notwithstanding the letter was written in reply to one written by plaintiff at the instance of defendant. The only purpose in introducing the letter at all is to prove the true ownership of the sulky in Patton, and that Hays had no claim to it, or property in it; and there seems to be no question of dispute in the case on that point.
Instruction No. 2 seems to have been given upon the theory that the evidence tends to show that plaintiff re-pledged the property for the forty dollars, or agreed, “on being informed of the pledge, that the property should remain with the defendant until he was paid his money.” The evidence tends to show that Joliff admitted the rights of plaintiff in the premises, and, seeing the mistake he had made in failing to inquire into the right of Hays to the property before accepting the pledge, as it was his duty to do,
Instruction No. 4 is misleading, and should not, in view of the evidence, have been given in this case. In support of this instruction appellee cites Benj. Sales, § 19, and quotes a fragment of said section (and even quotes that imperfectly), and from this argues that, “if this be true of sales, it must also be true of pledges.” But appellee fails to notice a very important limitation to said rule, immediately following the quotation in the same section. The
Reversed.