Bloch v. Edwards

• Decision Date: 28 June 1897
• Parties: BLOCH ET AL. v. EDWARDS.
• Court: Alabama Supreme Court

22 So. 600

116 Ala. 90

BLOCH ET AL. v. EDWARDS.

Supreme Court of Alabama

June 28, 1897

Appeal from circuit court, Bibb county; John Moore, Judge.

Action of detinue by I. Bloch & Co. against R. W. Edwards.

There were verdict and judgment for the defendant. Thereupon plaintiffs moved the court to grant them a new trial, on the grounds that the court erred in the charge given to the jury in refusing to give the general affirmative charge requested by the plaintiffs, and because the verdict was contrary to the law and the evidence. This motion was overruled, and the plaintiff's duly excepted. Plaintiffs appeal, and assign as error the overruling of their motion for a new trial. Reversed.

Hague &amp Lavender, for appellants.

Ellison & Thompson, for appellee.

COLEMAN J.

The appellants, as mortgagees, sued in detinue to recover a certain bay mare, which was included in the mortgage. There was no controversy as to the due and proper execution of the mortgage, and the justness of the claim secured thereby. After the plaintiffs had introduced the mortgage and evidence of the debt, and that the mare sued for was included in the mortgage, and in the possession of the defendant at the institution of the action, the defendant testified in his own behalf substantially that the plaintiffs, by their agent, one Gardner, agreed to receive, and did accept and receive, from the defendant, another and different horse in the place of the horse conveyed by the mortgage. The agent, Gardner witness for the plaintiffs, contradicted this statement of the defendant, and testified substantially that he requested payment of the defendant of the mortgage debt; that defendant told him that he had no money, but desired to make a partial payment on the debt with a horse; that he and defendant valued the horse at $50, which amount was credited upon the debt, leaving a balance unpaid of $100; and that there was no understanding or agreement that the horse turned over to him was substituted for the mare included in the mortgage, and sued for. In the oral charge, the court instructed the jury "that, before the plaintiffs could recover in this case he must have returned to the defendant the horse which Gardner had received from the defendant before the commencement of this suit." The effect of this instruction was that although the horse may have been received from the defendant by agreement with him as a partial payment upon the...