Kendrick v. Beard

• Decision Date: 11 March 1892
• Citation: 90 Mich. 589,51 N.W. 645
• Court: Michigan Supreme Court
• Parties: KENDRICK v. BEARD.

51 N.W. 645

90 Mich. 589

KENDRICK v. BEARD.

Supreme Court of Michigan

March 11, 1892

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Trover by George Kendrick against Frederick A. Beard for a team of horses. Judgment for plaintiff. Defendant appeals. Affirmed.

Farrand & Jenks, for appellant.

Stevens & Merriam, for appellee.

LONG J.

This cause was in this court, and heard at the June term of 1890 and is reported in 81 Mich. 182, 45 N.W. 837. The cause has again been tried in the St. Clair circuit, and verdict and judgment entered in favor of plaintiff for the amount unpaid on the note. But two questions are now raised:

1. That the court erred in instructing the jury that "they could find a verdict against the defendant for the amount remaining unpaid on the note, with interest, if they found the value of the horses equaled or exceeded that amount," for the reason that there was no evidence of the value of the horses at the time of the conversion. By the evidence it is shown, however, that at the time the horses were sold by the plaintiff conditionally to David Beard they were of the value of at least $350; that David Beard was to pay that amount for them. This was about 11 months prior to the time the demand was made upon the defendant for them, and there was no evidence offered showing, or tending to show, that they had depreciated during that time. It was held in Denton v. Smith, 61 Mich. 433, 28 N.W. 160, that, where a witness testified to the value of a cow a year before the replevin suit was brought, this was some evidence of value at the time of the bringing of the suit, and should go to the jury for what it was worth, in connection with other evidences of value. We think it could not be said in the present case, from the circumstances surrounding the transaction, the way the horses had been kept after the sale to David Beard, and the evidence of their value at the time David Beard took them, that there was no evidence which the jury might properly consider as to their value at the time the demand was made. It was not error, therefore, to submit this question to the jury.

2. It is contended that the court was in error in permitting the plaintiff to recover, for the reason that no legal demand was made upon the defendant for the property. It appeared that Mr. Thomas Murphy, in company with Mr. Symington, went to defendant's place of residence,-they acting in...