Boutwell v. Parker

• Citation: 124 Ala. 341,27 So. 309
• Parties: BOUTWELL ET AL. v. PARKER ET AL.
• Decision Date: 17 January 1900
• Court: Supreme Court of Alabama

27 So. 309

124 Ala. 341

BOUTWELL ET AL. v. PARKER ET AL.

Supreme Court of Alabama

January 17, 1900

Appeal from circuit court, Pike county; J. W. Foster, Judge.

Trover by A. G. Parker & Co. against H. Boutwell and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

On the trial of the case it was shown that the machinery in question was the property of the plaintiffs, and was taken by the defendants in July, 1894, and August, 1894. The defendants set up their right to the machinery as purchasers thereof at a tax sale, and introduced in evidence the assessment and entries of the tax assessor and tax collector's books showing the delinquency in the payment of taxes by the plaintiff, and that the machinery, together with certain lands of the plaintiffs, was sold for the payment of taxes at which sale the defendants became the purchasers. On the trial it was admitted that the tax sale was void, and it was also shown that the plaintiffs had made no demand on the defendants for the property before the institution of the suit. The plaintiffs introduced evidence tending to show the value of the property at the time of its being taken into possession by the defendants. They also introduced one J. A Dennis as a witness, who testified that the property had been left in his possession by the plaintiffs, and that he was looking after the property for the plaintiffs at the time it was taken by the defendants, and that when the defendants came to remove the property he (Dennis) told Holly Boutwell one of the defendants, that the property belonged to the plaintiffs, and that they had better not move it, and that, upon said Boutwell telling him that the defendants had bought it at tax sale, and that it was their property, he (Dennis) said no more. Isaac Boutwell, a witness for the defendants, was permitted by the court to testify in detail as to the condition and value of the property about two weeks before it was removed, and this witness also testified without objection as to the condition of each piece of property converted or taken by the defendants, and as to its value about a month after it was removed by the defendants. The defendants then offered to prove by the witness Isaac Boutwell the condition of the said property, and its value, in the fall of 1895,-a little over a year after they had taken possession of it. The plaintiffs objected to this evidence upon the ground that the evidence as to the value of the property should be limited to the time, or about the time, of the removal of the property, and that the evidence offered was too remote in point of time to show its value in this case. The court sustained the objection, and the defendants duly excepted. Upon the introduction of all the evidence, the court, at the request of the defendants, gave to the jury the following written charge: "If the jury believe the evidence, they must find for the plaintiffs for the value of such property as the evidence shows the defendants removed from Ansley station, in Pike county, Alabama." The defendants duly excepted to the giving of this charge, and also duly excepted to the court's refusal to give the following written charge, requested by them: "If the jury believe the evidence, they will find for the defendants." There were verdict and judgment for the plaintiffs. The defendants appeal, and assign as error the rulings upon the evidence, and the giving of the charge requested by the plaintiffs, and the refusal to give the charge requested by the defendants.

Worthy, Foster & Carroll, for appellants.

R. L. Harmon, for appellees.

SHARPE J.

In trover it is a general rule, to which this case forms no exception, that, when the property has a fixed value, the measure of damages is that value at the time of the conversion, with...