88 Ga. 779 | Ga. | 1892
This was an action of trover for a promissory note, in which the plaintiff elected to recover the value of the note. There was a verdict for the plaintiff, and the defendant excepts to the overruling of his motion for a new trial. Besides the general grounds that the verdict is contrary to law and the evidence, it is complained that the court erred in instructing the jury as follows: “If the note was the property of the plaintiff in this case, Mrs. Tharpe, and was put in his (defendants’) possession for the purpose of keeping and to be returned to her, and after it .was put in his possession for that purpose Mr. Bushin asserted title to it, claimed it as his own. that would have been a conversion in law. It would then have been necessary (unnecessary?) for the plaintiff in this case to have made a demand before bringing suit for the recovery of this note. Now understand : if the note belonged to Mrs. Tharpe as I have explained to you, and if she put it in Mr. Bushin’s possession to be kept for her and to be returned to her, and if he received it for that purpose, and after having received it for that purpose he then, after that, claimed it as his own note and exercised ownership of it and denied that she had any right to it, that would have been a conversion, and whenever that occurred her right of action accrued, and she would have had a right to have sued for it.”
It was contended that the evidence fails to establish three things which in an action of trover are essential to a recovery: (1) title in the plaintiff to the property sued for; (2) conversion or appropriation of the property by the defendant, and (8) value of the property. It is time the testimony is somewhat conflicting, but there is ample evidence to uphold the verdict. The note in question was payable to the defendant’s wife, or bearer.
It sufficiently appears from this evidence that the title to the note was in the plaintiff, and that she was induced by the fraud of the defendant to part with possession for a temporaiy purpose and without any intention of yielding her rights of possession or ownership. And when the fraudulent purpose of the defendant was consummated by his suing upon the note as the property of his wife’s estate, and afterwards collecting the proceeds, there was such a conversion of the note as would entitle the plaintiff to maintain this action. Any dis
It was contended that at the time of making the demand and at the time of bringing this action, the note was not in the possession, custody or control of the defendant, but had been merged into a judgment. The plaintiff, however, was not seeking to recover the note itself, but had elected to accept a verdict for its value, as she had a right to do under the code, §§3563, 3564. Authorities were cited to show that if the note was paid or in any manner legally discharged, trover would not lie to recover the value of it, for it would have no value. This would be true if the note was of no value at the time of the conversion, and such is the effect of the authorities cited; but it is immaterial that the note was
It was not contended in the present case that the value of this note, as expressed in the verdict, was in excess of its highest proved value between the time the defendant received it from the plaintiff' and sued upon it and the time it passed into judgment. The verdict was for the amount of that judgment at the date of its rendition, interest from that date not being added.
Dor the reasons stated, we think there was no ei’ror in the court’s instruction as to what would constitute a conversion, and that there was sufficient evidence to sustain the recovery. There were other grounds of the motion -which it is needless to consider. One of these was, that the court erred in charging the jury that the plaintiff did not sue for the note itself but. for its value. The motion does' not specify in what respect this was error, and it appears from the record that the plaintiff did elect to take a verdict for the value of the note. Other grounds are, that the verdict is contrary to a. specified portion of the charge; that the charge, as a whole, is erroneous, because it did not present to the