115 Ga. 748 | Ga. | 1902
Mallory Brothers & Company brought an action of bailtrover against J. W. Trammell, to recover an engine, boiler, and cotton-gin, and hire for the same. At the first term the defendant-tendered to the plaintiff the property sued for, and filed an answer disclaiming title thereto, and alleging that the property was worth nothing for hire, that no demand for the property had been made upon him prior to the filing of the suit, and setting up facts showing that there had been no conversion. Upon the trial the defendant insisted that, in view of his tender and disclaimer of title at the-first term, the only issue to be tried was as to whether any hire or costs should be recovered by the plaintiffs; and requested the court-to submit that issue only to the jury. The court declined to comply with this request, and defendant excepted. It appeared upon th.e trial that plaintiffs had sold the property sued for to defendant on 'credit, taking his notes for the purchase-money, the notes reciting that title to the property should remain in the plaintiffs till all the purchase-price should be paid. The evidence submitted in behalf of the defendant tended to show that the gin was practically worthless, and that, on this account, defendant was unable to-run the machinery for ginning cotton, the purpose for which it was bought. It also appeared that the defendant, after full knowledge-of the alleged defects in the machinery, renewed the purchase-money notes, which were in evidence, and gave additional security for their payment. There was no evidence either of a demand upon the defendant for the property, or of an actual conversion of the same by him, before suit. After all the evidence was submitted, the plaintiffs asked for a verdict for the amount appearing to be due on the renewal notes for the purchase-money, and the court directed a verdict in accordance with this request. Defendant excepted to such direction, upon various grounds. We deem it
We think this exception well taken. The Civil Code, § 3897, declares: “ In actions for the recovery of personal property, if the defendant at the first term will tender the property to the plaintiff, together with reasonable hire for the same since the conversion, disclaiming all claim of title, the costs of the action shall be paid by the plaintiff, unless he can prove a previous demand of the defendant, and a 'refusal to deliver it up.” . The defendant substantially met the requirements of this section. At the first term he filed an answer in which he expressly disclaimed all claim of title to the property sued for, and tendered it to the plaintiffs, offering and agreeing, as it was impracticable to bring it into court, to place it free on board the cars at any railway station in Worth county the plaintiffs might designate. The property was cumbrous, and it appeared that the plaintiffs did not reside in Worth county, where the property was situated and wheré the suit was pending, but in Bibb county. Under the circumstances, we think this was a good tender. Civil Code, § 3729. It is true that defendant did not tender reasonable hire for the property “ since the conversion,” but he alleged, as a reason for his -failure to do so, that the property was worth nothing for hire, that there had been no demand made upon him for the property, and that there had been no conversion of it. If there had been no conversion, or if the property wasworth nothing for hire, the plaintiffs could not recover hire. Under the Civil Code, § 5335, the plaintiff in an action to recover personal property .may say, upon the trial, whether he will accept an alternative verdict for the property or its value, or whether he will demand a verdict for the damages alone, or for the property alone .and its hire, if any ; and it is the duty of the court to instruct the jury, if they believe the plaintiff entitled to recover, to render the verdict as the plaintiff may thus elect. But this section must be construed in connection with section 3897; and where the action
Judgment reversed.
