JAN. TERM, 1856. BOWMAN V. BROWNING. HIS cause was argued in this court T before the Hon. C. C. Scott, Judge, and the Hon. Thomas Johnson, Special Judge—the Hon. E. H. En-glish, Chief Justice. and Hon. T. B. Hanly Judge, not sitting. *Scott, J. This case was p600 brought here by appeal from the St. Francis circuit court. It was commenced before a justice of the peace, upon an open account, as follows, to-wit: " :Tay 91h, 1853._ THOMAS R. BOWMAN, To EDMOND A. H. BROWNING, For one bale of cotton, marked A. J. B., weighing in lint cotton 440 lbs., at lOc. per pound, 844 09 For one bale of cotton mark, ed A. J. B., weighing 354 lbs., at 10c. per pound, 35 40 $79 40.'i Upon a trial before the justice, judgment was rendered for the plaintiff; for the sum claimed; from which the de-.- fendant appealed to the circuit court,. where, upon a trial, de novo, the jury found a verdict, and the court overrul-BOWMAN
ing a motion in arrest upon the ground that the case Made out by the testimo-V.
ny, was not one within .the jurisdic-, BROWNING. tion of the justice, judgment was again - Where the defendant is sued for the value of cot-rendered for the plaintiff for the same ton shipped by hiss under a contract, the plaintiff sum. The defendant then moved for a must prove a stipulation to carry the cotton to souse place, or deliver it tl some persou, or dispose of it new trial, upon the ground that the in sonte manner, and a breach of such stipulation. verdict and judgment were without Where a person has tortioudy obtained the pos-evidence to support them, and was session of the goods of another, and sold them and against the law; and that the case was. received the proceeds, the owner may elect to waive the tort, mid affirm the sale aud collect the price not within the jurisdiction of the jus-received; but for a mere detention of the goods, in tice, which the court overruled, and :uch case, or a conversion of them; as,usupsit will the defendant excepted, setting all the .not lie to recover their value. evidence in his bill of exceptions, and Appeal from the Urcuit Court of St. appealed to this court. Fiancis county. From this it appears, that after the plaintiff hwl introduced evidence conS. W. Williams, for appellant. ducing to show, that at the date of the Byers and Jordan, for appellee. supposed accrual of the alleged
BOWMAN V. BROWNING. VOL. 17 ty, he had, on the bank of the the court. And supposing they found St. Francis river, at the burnt the former, then, waiving all other ob-mill landing, two bales of cotton, jections, the verdict and judgment are 6013 ] *marked, and of the weight as is clearly without any support, by the specified in the bill of particulars, and evidence, in material points ; because that they, together with a large num-there is none at all to show any stipu-ber of other bales of cotton, had been lation to carry the cotton in question taken on board of a steamboat, of to any place, or to deliver it to any per-which the defendant was, at the son, or to dispose of it in any manner, time, captain and owner, and had or any breach of any such stipulations. also proved the quality of his cotton, The evidence going no *further, [*602 and the value of such, he introduced as to any supposed contract, than that another witness, who testified, "that the defendant should take the cotton he (the witness) some time previous to away, without any evidence to show the taking of the cotton in controversy, further whither it should be taken, or as alleged, instructed Captain Bow-to whom to be delivered, if to any one, man, the defendant, that there would or whether the defendant had been be some cotton sent to the burnt mills called to account, or had in any way landing for Browning, the plaintiff; and broken the supposed contract, or any that he (the witness), was the agent of its stipulations. of the plaintiff; wanted him, Bowman, And if it be supposed that the jury to take it away, but that he did not found that the cotton was taken away know when said cotton would be at under any contract, it will have to be the river for shipment. That he, the considered that they disregarded so witness, was afterwards told by Bow-much of the evidence produced by the man, that he had taken a large lot of plaintiff himself as conduced to show cotton from the burnt mills with that the defendant did not, in fact, various marks and brands, of which take the cotton away, as the cotton of he took no memorandum, and taking plaintiff, but as the cotton of Johnson all the cotton then there, but that said and Seaborn, under authority from lot of cotton was claimed by Johnson them, and therefore did not, in truth, and Seaborn, and that he thought he in doing so, act under any authority got no cotton for Browning. from the plaintiff; or recognize any This was all the testimony produced such as an excuse for what would be by the plaintiffS, and the defendant of-otherwise a naked tort. fered none at all. On the other hand, if it be supposed It is stated in the bill of exceptions, that the jury found the cotton tor-that the court gave general instruc-tiously taken away by the defendant, tions, but what these were does not then it is equally clear that the verdict appear, nor does it appear that any and judgment cannot be sustained ; special instructions were either given because, the extent of the rule of waiv-or refused. ing torts and bringing assumpsit, is not This being the whole case, as it ap-(as between the original parties), be-pears in the record, it is impossible for yond the limit, that if the wrongdoer us to know whether the jury found has sold the goods, and in any manner that the cotton in question was taken received the proceeds, so as to be away under any supposed contract, chargeable as for money, the owner or was merely tortiously taken away, may elect to affirm such sale or dispo-or whether or not as to that point, sition, and claim as his own the price any misdirection was given to them by so received. His title to the property
JAN. TERM, 1856. entitling him to the price received for it, if he so elects, and thus the wrongdoer is considered as having received the money for the use of the owner. But if there has been a mere detention of the goods, or a conversion of them, not going the length indicated, assumpsit will uot lie to recover their value. .Thmes v. Hoar, 5 Pick. 285 ; Pritchard v. _Ford, 1 ,I. .1: Marsh. Rep. 543; Wellitt v. Wellitt, 3 Watts Rep. 277; Upchurch v. Nosworthy,15 Àla. Rep. 705; Crow v. Boyd's adm. 17 Ala. Rep. 51. The judgment must be reversed and the cause remanded. Cited and approved:—Hudson v. Gilliland, 25- 100 ; Howell v. Graves, 27-307; Chamblee v. Mc-Kenzie, 31-155.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.