Fail v. McArthur , 31 Ala. 26 ( 1857 )

WALKEN, J.

— It is clear from the record, that the defendant had the advantage of the defensive matter of the second plea, under the general issue. Therefore, an error in sustaining the demurrer to the second plea, if one was committed, will not authorize a reversal of the judgment of the court below. — Dunlap v. Robinson, 28 Ala. 100 ; Nelson v. Bondurant, 26 Ala. 341; Goodwin v. McCoy, 13 Ala. 271; Shehan v. Hampton, 8 Ala. 946; Rakes v. Pope, 7 Ala. 166.

2. In order that the declarations of a third person may be evidence, as a part of the res gesta, it is necessary that the act which they explain and qualify should itself be pertinent to the issue. — Gilbert v. Gilbert, 22 Ala. 529; Hooper v. Edwards, 20 Ala. 528; Robertson v. Smith, 18 Ala. 220. The wife of one of the witnesses declared, when in the act of going to the plaintiff’s house, that she was going to see a negro woman, about to be delivered of a child; and when she returned, she declared that the woman had given jbirth to a child. It is a fatal objection to the competency of those declarations, that the acts of going to and of returning from the plaintiff’s house, which they are supposed to qualify and explain, are totally immaterial and irrelevant. The declarations of third persons cannot become evidence, because they accompany acts of third persons which have no connection with the case. Eor the error in the admission as evidence of these declarations, the judgment of the court below must bo reversed, and the cause remanded.

3. If the defendants, as partners, hired the slave of the plaintiff, for the service of the partnership, in a particular department of labor, and then employed her in one different from that stipulated by the contract, the conversion which results would impose a liability upon the defendants as partners. The tortious conversion consists in the violation of a partnership contract, by the employment of the slave in a manner inconsistent with it; it is a legal inference, at the election of the plaintiff, from the particular violation of the contract. Under the decision in Myers v. Gilbert, 18 Ala. 467, a different rule of liability applies to tort-feasors, as between themselves, who commit such an act as that which makes the conversion here, from that which ordinarily prevails. The duty of contribution to the payment of the damages resulting from the tort appertains to both as partners. — Story on Partnership, 322, § 220. Eor this reason, the rule which makes the declarations of one partner, pending the partnership, evidence against all the partners, applies to this case.

4. There was no error in the refusal of the court to charge the jury, that the plaintiff could not recover, if, after the commencement of this suit, he had sold the note given for the hire of the slave during the term of the bailment, and had re-obtained the possession and ownership of the note, by giving his own note in lieu of it to the assignee. The court was bound to refuse this charge, unless the transfer of the note for the hire estopped the plaintiff, notwithstanding he had regained the possession and ownership of the note. In Moseley v. Wilkinson, 24 Ala. 411, it was held, that the bailor of a slave for hire is estopped from a recovery for the conversion of the slave during the period of the bailment, by receiving before suit brought payment of the hire for the entire term, if he had full knowledge of the conversion. In that case, the bailor, by an unequivocal act, treated the hirer as retaining that character, and responsible under the contract of hiring to the end of the term. This act consisting in the receipt of money by the owner from the hirer, it would have been prejudicial to the other party for the owner to have asserted an inconsistent right. The owner made his election to treat the bailment as continuing to the end of the term; both parties acted upon that election ; and, upon principles of justice, as well as settled law, he was estopped from asserting the contrary in a suit for the •conversion of the slave. Here, the plaintiff, after suit brought, transferred the note, and then took it back. This was not an act treating the bailment as continuing to the end of the term, of such unequivocal import a.s will authorize an application of the doctrine of estoppel. The note included the hire of another slave. The plaintiff may have transferred the note with the intention of regaining it. The defendants did no act, referring to, or based upon, the treatment of the hiring as continuing to the end of the term. — Hooks v. Smith, 18 Ala. 338.

5. The court charged the jury, that a special hiring, for a particular employment, could be shown without the use of the express words, “that the slave should engage in no other employment;” and “that they might determine from the evidence, whether such was the understanding and agreement of the parties at the time of the hiring, and was embraced in their contract. ” This charge was correct. If a slave should he hired to one for a particular purpose, to be employed at a particular labor, there would be a special hiring for a particular purpose. ITe who hires a slave for a particular service has id o right to employ the slave iu another and different seivice : and if he does so, it maybe treated as a conversion by the owner. — Hooks v. Smith, 18 Ala. 338; S. C., 19 Ala. 101; Moseley v. Wilkinson, 4 Ala. 411. This principle is not only settled in this State, but was well established at common law; and the books abound with adjudications recognizing it. Where one hired a horse, to ride from Boston 4-| miles to Brooklin, and, upon reaching Brooklin, rode,4J miles farther to Watertown, he was held liable for a conversion of the horse. — Wheelock v. Wheelwright, 5 Mass. 104 ; Rotch v. Hawes, 12 Pick. 136. So, “if a horse is hired as a saddle-horse, the hirer has no right to use him in a cart, or to cany loads, or as a beast of burden ; and one who borrows jewels, to wear to a ball, will be responsible if he wear them to the theatre, orto a gaming house. Edwards on Bailments, 238 ; see, also, Story on Bailments, §§ 232, 233, 234, 241.

Tested by the principles above laid down, the additional instructions of tbe court, given on the request of the jury, were, in all respects, free from error.

The judgment of the court below is reversed, and the cause remanded.