52 S.E.2d 571 | Ga. Ct. App. | 1949
Lead Opinion
1. The evidence authorized the verdict for $1750 as the value of the truck.
2. The charge of the court that, if the plaintiff recovered in the case, he would be entitled to recover the highest proved value between the date of the alleged conversion and the trial, under the evidence relating to the market value, was not error.
3. The failure of the court to charge that the jury could not accept as absolutely binding the estimates of value placed on the truck in controversy, which estimates were only a part of the testimony relating to value, was not error.
4. The evidence authorized the verdict for $200 attorney's fees as expenses of litigation.
5. Grounds 10 and 11 relating to the charge of the court on the subject of partnership and agency, and to the failure of the court to charge more fully on partnership, do not show error.
6. There was no error in the charge as to the ownership of the truck in controversy.
7. The evidence supported the verdict, and the court did not err in overruling the motion for new trial.
1. Ground 4 of the motion for new trial asserts that there is no competent evidence in the record which will support the verdict for $1750 as the value of the truck. There was evidence as to the general condition of the truck, its use and state of repair, what the plaintiff paid for it, the length of time the plaintiff had owned it, and the mileage he had put on it. Two witnesses who were apparently disinterested — one an automobile salesman and one the Studebaker dealer in the Macon area — testified as to the value of the truck. One of these witnesses estimated its value at $1750 and the other at $1755. The value or market price of an article may be shown by direct or circumstantial evidence, or both, and the question of the value of an article is peculiarly for the jury. The jury may consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge throwing light upon the question. A. C. L. R. Co. v. Harris,
2. Grounds 5 and 6 complain of the charge that, if the plaintiff recovered in the case, he would be entitled to recover the highest proved value between the date of the alleged conversion and the trial, and because the court failed to charge that the highest proved value meant the highest proved market value. It is contended that it was error to omit the word "market" in the charge with respect to the value of the truck. Ordinarily the measure of damages where property has been converted is its market value at the time of its conversion.Park v. Swann,
3. Error is assigned in ground 7 on the failure of the court to charge that the jury could not accept as absolutely binding the estimates of value placed on the truck in controversy. The defendant cites on this contention Oxford v. Ellis,
4. Grounds 8 and 9 complain of the verdict for attorney's fees based on the alleged bad faith of the defendant, and the charge of the court on that subject. The Code, § 20-1404, provides that the expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. This court said in Patterson Co. v. Peterson,
5. Ground 10 alleges error in two paragraphs of the charge as follows: "With further reference to the contentions of the defendant Sapp, he contends that one N. V. Moore, either as partner or authorized agent of the plaintiff Howe, turned the described truck over to the defendant and pursuant to authority from that source, he, the defendant, sold the truck to a third party and delivered to N.C. Moore a check for the amount agreed to be paid. In the event you do determine that N.C. Moore was the partner of B. Fred Howe, or was the agent of B. Fred Howe, then you would give consideration to certain principles of agency.
"In the event N.C. Moore was duly authorized to sell the truck by the plaintiff Howe, then, of course, the defendant would be authorized to negotiate a sale with N.C. Moore, and such sale would not constitute a wrongful conversion. Furthermore, if N.C. Moore was authorized by the plaintiff to negotiate a sale of the truck but was given private instructions or limitations as to specific terms of such sale, as to the amount or the like, and the defendant had no knowledge of any such private instructions or limitations and had no reason, in the exercise of reasonable judgment and discretion, to question the authority of the agent, or to know or believe that Moore was without the necessary authority; *5 then and in that event, a sale consummated between Moore and Sapp would not as to Sapp constitute a wrongful conversion."
Ground 11 complains of the failure of the court "to charge the jury on partnership, and the right of a partner to sell property belonging to a partnership." There are a number of Code sections dealing with the general principles of partnership, and a number that deal with the rights and liabilities of partners among themselves, and still a greater number respecting the rights and liabilities of partners as to third persons. The assignments of error in these grounds do not point out just what principles of partnership law should have been charged other than as stated in ground 11, and this does not point out any particular Code provisions that should have been charged. It is not contended that the charge respecting agency was incorrect. It will be noted that the court charged that the defendant contended that he bought the car from Moore, either as a partner or as the authorized agent of the plaintiff, and then charged correctly on the subject of agency without saying more about partnership. One complaint is that the charge was erroneous because it mixed and confused the law relating to agency and partnership, and that different rules of law are applicable thereto. In the absence of a request by the defendant for a more compete charge on the subject of partnership, we cannot say that the charge was error. The defendant had the benefit of his contention that Moore was a partner of the plaintiff, and also of his contention that Moore was the agent of the plaintiff, and it seems to us that, if he desired a more complete charge respecting partnership, it should have been requested by him.
6. The final special ground complains of the failure of the court to charge the jury that the plaintiff must be the sole owner of the truck in controversy before he would be entitled to maintain an action of trover against the defendant. The plaintiff testified that he was the sole owner of the truck, and other testimony offered by him tended to show the same thing; and the court charged the jury that the gist of a trover action was conversion, and that the plaintiff would have to establish that he was the owner of the truck and had been deprived of its possession in a manner which amounted to conversion by the defendant before he would be entitled to recover. We think that the charge on the *6 question of ownership was sufficient and we find no error in this complaint.
7. As ruled in dealing with grounds 4, 8, and 9, the evidence supported the verdict and the court did not err in overruling the motion for new trial.
Judgment affirmed. Sutton, C. J., concurs, and Felton, J.,concurs in the judgment and specially as to division 5 of theopinion.
Concurrence Opinion
Assuming that there was evidence authorizing the jury to find that there was a partnership as to the truck, the charge given was sufficient to cover the issues involved, in the absence of a request for further instructions. The court charged as follows: "In the event you do determine that N.C. Moore was the partner of B. Fred Howe, or was the agent of B. Fred Howe, then you would give consideration to certain principles of agency. In the event N.C. Moore was duly authorized to sell the truck by the plaintiff Howe, then, of course, the defendant would be authorized to negotiate a sale with N.C. Moore, and such sale would not constitute a wrongful conversion." The plaintiff in error contends that this charge was error, and that the failure to charge more fully on the law of partnership was error because, as he contends, if the truck had been partnership property, Moore could have sold it without authority from Howe. Neither assignment of error is meritorious, and if the case were to be reversed, the plaintiff in error would not get the instructions to the jury which he desires on another trial. The selling of trucks was not the business of the partnership, if there was a partnership and the truck was partnership property, and one partner cannot sell the assets of the partnership without the consent of the other or others except in the due course of business. 40 Am. Jur., Partnerships, § 180; L.R.A. 1918 A, 928. The charge stated the law applicable to the facts. If Moore sold the truck as agent for Howe, he had to have authority from Howe to do so. If the truck belonged to the partnership, Moore had to have authority from the partnership through both partners, which means that in such a case he was acting as agent of the partnership as principal, and the jury would not have had any instruction which would have benefited the plaintiff in error if the court had told them that, if Moore sold as a partner, the law of partnership applied rather than the law of agency. *7