Jones v. White

• Decision Date: 07 November 1914
• Docket Number: 652
• Citation: 189 Ala. 622,66 So. 605
• Court: Alabama Supreme Court
• Parties: JONES et al. v. WHITE.

66 So. 605

189 Ala. 622

JONES et al. v. WHITE.

No. 652

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Trover by J.B. White against Charlotte Jones and another. Judgment for plaintiff, and defendants appeal. Affirmed.

S.W Tate, of Anniston, for appellants.

Knox Acker, Dixon & Sterne, of Anniston, for appellee.

GARDNER J.

This cause was transferred to this court under the provisions of section 6 of Acts 1911, p. 449. The suit is in trover for the conversion by defendants of two mules, title to which was claimed by the plaintiff under a certain mortgage executed by James Ross and others to plaintiff. The mortgagor resided in Talladega county, where also the mules were kept; the mortgage being recorded in that county two days after its execution. The defendants claimed the mules under a mortgage executed by James Ross a short while prior to the execution of the mortgage to plaintiff, but the mortgage of defendants was never recorded in Talladega county.

There was no question as to the superiority of plaintiff's mortgage, the chief, if not in fact the only, contention being as to the identity of the mules in plaintiff's mortgage; the defendants insisting that the mules which they took possession of from said mortgagor, Ross, were two young mules they had sold said Ross at the time their mortgage was executed, and that said Ross had with him, at the same time and owned at the time of the execution of the mortgage to the plaintiff, two other mules much older and much larger than these two young mules, but in color resembling these young mules, and that the mortgage of plaintiff was intended to be upon the older mules. The jury found the issue in favor of the plaintiff, and assessed the damages at $175. There was no controversy as to the fact that the indebtedness due on the mortgage to plaintiff was much in excess of this sum.

Some few of the assignments of error relate to rulings of the court as to admissibility of certain evidence. To these we briefly refer. The first relates to the action of the court in overruling appellants' objection to the question of plaintiff to witness Sims: "What was the reasonable value of said mules at the time Ross bought them?" The purchase was by Ross from defendants in February, 1907, and the conversion seems to have been, according to the testimony of defendant L.G. Jones, in October, 1907. The witness, however, made no direct answer, replying: "The value was not very much, because they were not able to work. They were too young and unbroken." It is clear, of course, from this answer, which was really favorable to appellants, that they can take nothing by this assignment.

"In trover, ordinarily, the measure of damages is the value of the property at the time of the conversion, with interest, but, if the evidence shows fluctuation in value after the conversion, the jury, in their discretion, may fix the value of the higher or highest price at any time between the conversion and the time of trial. *** When the plaintiff's title is based on a mortgage, the measure of damages is the amount of the mortgage debt and interest not to exceed the value of the property." Ryan v. Young, 147 Ala. 660, 41 So. 954.

It is competent to prove the value of property at a certain time by showing its value at a prior and a subsequent period, within reasonable limits, in the same market. Torrey v. Burney, 113 Ala. 496, 21 So. 348.

The second assignment raises a similar question. The court overruled objection of defendants to the question to plaintiff as to the value of the mules when he saw them in March, 1907. The rule as to the measure of damages in cases of this kind is well understood and needs no repetition ( Ryan v. Young, 147 Ala. 660, 51 So. 954), as likewise is the rule that the value of property at a certain time may be proved by showing its value at a prior and a subsequent period, within reasonable limits, in the same market (Torrey v. Burney, 113 Ala. 496, fifth headnote, 21 So. 348).

But whether this evidence came within this rule or not is, in our opinion, immaterial, for the reason that it affirmatively appears from this record that the jury fixed upon the valuation of the mules in accordance with the testimony of the defendants; the defendant L.G. Jones testifying that they were not worth over $175, and that when sold they netted $165. Plaintiff was entitled to interest to the time of trial, and the trial was had some few years subsequent to the conversion. The verdict was for $175. It is therefore clear (as we think, it affirmatively appears in the record) that the jury accepted the estimate of valuation of the defendants, and that any ruling of the court as to such was entirely innocuous to them.

The next insistence (constituting the third assignment of error) is as to the action of the court in sustaining objection of the appellee to the question asked witness Rhodes by appellants' counsel: "Were the Jones' mules big enough to work when Ross got them?" The assignment refers us to page 20 of the transcript. An examination of same discloses that this ruling was as to the witness Sims, and not as to the witness Rhodes. The assignment was therefore inapt. We do not think, however, that in this there is reversible error. The facts were given by the witness in detail to the jury, and no prejudice could have resulted from the ruling. L. & N.R.R. Co. v. Williams, 62 So. 679.

The court sustained objection of the appellee to the question propounded to one of the defendants (L.G. Jones) as follows: "In fixing the price when you sold the mules, you took into consideration that they were being bought by a negro on time?" This could only relate to the question of valuation, and, as we have previously stated, it appears that the jury accepted the estimate of value fixed by appellants, and any ruling thereon is without injury.

Moreover, the question called in fact for the mere uncommunicated reason or motive of the witness, for asking what he "took into consideration" in selling the mules, was the equivalent of asking the witness to give his uncommunicated reasons therefor. 5 Mayf.Dig. 396, 397; 3 Chamberlayne, Modern Law of Evidence, §§ 1944, 1945.

The question objected to, which constitutes the fifth assignment of error, calls for the opinion of the witness as to...