Thе alleged conversion by appellees of five bales of cotton claimed by appellant as his property gave rise to this suit. Thе defense relied on was that the defendants received the cotton as bailees of one D. D. Wood, who deposited it with them subject to his оrder. That plaintiff and Wood formed a partnership in 1869, under a written agreement providing that they should share the crop equally, and should settle all of their indebtedness to each other out of the crops. That Wood represented that' plaintiff was indebted to him in the sum of four or five hundred dоllars, and that the cotton was therefore his; that they took the cotton for the purpose of securing a claim due them by Wood for goods to carry on the partnership firm, and that Wood having paid that claim and demanded the cotton, they had returned it to him in ignorance of plaintiff’s asserted right. There was no controversy as to the fact that the five balés were a part of the crop raised under the partnership agreement; but the evidence was conflicting as to the state of open accounts -be
Pending the suit, Yarboro, one of the defendants, died, and the court proceeded tо trial against Wimberly as surviving partner, without making Yarboro’s representatives parties.
On the trial the court refused to allow the plaintiff to • testify as to statements and promises alleged to have been made by the deceased; and this ruling is fairly presented for revision by bill of exceptions аnd assignment of errors.
The statute (Pas. Dig., art. 6826, 6827) is as follows:
“ 1. In the courts of this State there shall be no exclnion of any witness on account of color, nor in civil actions, because he is a party to or interested in the issues tried.”
“ 2. In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or аgainst them, neither party shall be allowed to testify against the other, or any transaction with or statement by the testator, intestate, or ward, unless сalled to testify thereto by the opposite party, or required to testify thereto by the court.”
The executor or administrator of Yarboro was not a party to this suit, and the prohibition, taken literally, does not support the ruling of the court. There is no ambiguity in the wording of the statute, nor can there be said to be any doubt arising out of the language of the law as to the intention of the Legislature in its enactment. “ It is not for the court to say, where the language of a statute is clear, that it shall be so construed as to embrace cases because no good reason can be assigned why they were excluded from its provisions.” (Denn v. Reid,
Even if it were admitted that the reason of the law applies with full force to this case, and the attempt be made to extend the statute by construction, so as to embrace surviving partners, it cannot be accomplished without unsettling settled rules of construction. In Tyson v. Britton,
We conclude that the court erred in excluding the evidence offered as to the declarations and promises of the deceased partner.
It is proper that we should notice another question which will necessarily again arise on the trial below. It
Whatever may have once been the rule, it is believed to be now settled that the bailee can never be in a better situation than his bailor; and if the latter has no title, the real owner is entitled to recover his property, in whose hаnds soever it may be found. (Story on Bailments, sec. 130; Edws. on Bailments, 88; Wilson v. Anderton, 1 Barn. & Adolph., 449; King v. Richards,
The bailee can protect himself against his bailor by showing that he has delivered possession, after demand, to the true owner. (Edws. on Bailments, 84; King v. Richards, supra; Rogers v. Weir,
The converse of this proposition is that he cannot refuse to deliver possession to the true owner who demands it of him, and of course, being bound to deliver to the true owner, mot excuse himself by subsequent redelivery to his baile . An unqualified refusal to deliver is a conversion, (Wilson v. Anderson, supra.)
It seems that a qualified refusal, in order to procure reasonable time to investigate the rights оf the parties, if made in good faith, would not be a conversion. (Rogers v. Weir, supra.) But a refusal, unless certain claims of the bailor or bailee inconsistеnt with plaintiff’s title were first paid, would be equivalent to an absolute refusal, and would amount to a conversion, after which the true owner’s right of aсtion cannot be defeated by redelivery to the bailor.
The right of a dignitary to protect himself by redelivery to his bailor is thus stated by Chilton, in Patterson v. Gаston,
The judgment is reversed and the cause remanded.
Reversed and Remanded.