Barnhill v. Howard

• Decision Date: 10 August 1894
• Citation: 16 So. 1,104 Ala. 412
• Parties: BARNHILL ET AL. v. HOWARD.
• Court: Alabama Supreme Court

16 So. 1

104 Ala. 412

BARNHILL ET AL. v. HOWARD.

Supreme Court of Alabama

August 10, 1894

Appeal from circuit court, Pike county; John R. Tyson, Judge.

Detinue by H. H. Howard against Osborn Barnhill, L. Barnhill, and Owen Barnhill to recover oxen. Judgment for plaintiff. Defendants appeal. Affirmed.

This was a statutory action of detinue, for the recovery of some oxen; and was originally commenced before a justice of the peace. The sheriff took possession of the property sued for under the writ of seizure, and upon the defendants failing to give a detinue bond within the time prescribed by statute the plaintiff executed a replevy bond, and the property was delivered to him by the sheriff. In the justice's court judgment was rendered in favor of the defendants, and the plaintiff appealed to the circuit court, executing a proper appeal bond. The evidence showed, without conflict, that the plaintiff purchased the oxen sued for from the defendants and under the contract of purchase, he was to pay $125 in weekly installments of $25, commencing the week after the trade was made. This contract of sale was oral, and one of the terms of the sale was, "that the oxen should stand good for themselves until they were paid for." On the day of sale the plaintiff made a payment, and afterwards paid the whole of the purchase price except about $25. The oxen were delivered to the plaintiff by the defendants on the day of sale, and he testified "that the defendants without his knowledge or consent went to the mill and slipped them off during his absence." The testimony for the defendants tended to show that when the contract of sale was made, it was agreed that Ellis Barnhill was to be hired by the plaintiff to drive the team of oxen, and have possession and control of them until they were paid for; "and was to drive them as long thereafter as they could agree after payment;" and that the said Ellis Barnhill did drive the team after the trade for a week, when he quit the service of the plaintiff. Upon the examination of the plaintiff as a witness, he was asked by his counsel the following question "Did the defendants, when the trade was to be made, tell you about a mortgage being on the oxen, during the conversation in which the trade was made?" The defendants objected to this question, on the ground that it was illegal and not pertinent to any issue in the cause. The court overruled the objection, and the defendants duly excepted. The witness answered that the defendants told him there was no mortgage on the oxen. The defendants moved to exclude this answer, and duly excepted to the court's overruling their motion. The plaintiff also testified against the objection and exception of the defendants, that after the trade he found out that there were mortgages upon the oxen, which had been given by the defendants. Upon the introduction of all the evidence the court at the request of the plaintiff gave the general affirmative charge in his behalf, and to the giving of this charge the defendants duly excepted. The judgment entry in this case is as follows: "On this 3d May, 1894, came the parties by attorney, and issue being joined on the plea of non detinet there came a jury of good and lawful men to wit: J. E. C. Patterson foreman, and eleven others, who, being duly sworn, on their oaths say: 'We the jury find for the plaintiff for the property sued for, one yoke of oxen, and one yoke of steers, one black and one red.' It is therefore considered by the court that the plaintiff recover of the defendants and their sureties on their appeal bonds the above property, [plaintiff had the property in his possession] and also the costs for which let execution [issue] against defendants and their sureties on their appeal bond." The defendants appeal, and assign as error the rulings of the court upon the evidence, the giving of the general affirmative charge for the plaintiff, and the judgment rendered.

Hubbard, Wilkerson & Hubbard, for appellants.

Parks, Harmon & Gamble, for appellee.

HARALSON J.

1. There was no conflict in the evidence as to what the contract between the plaintiff and ...