Springer v. Groom , 9 Sadler 123 ( 1888 )

Opinion by

Mr. Justice Green:

The verdict has established that the sheep in question were the property of Groom, the plaintiff. The only question for us-to consider is whether the learned court below was in error in qualifying the answers to the defendant’s first and second points, and in refusing the third and.fourth points.

We think there was sufficient evidence.to justify the qualification of the first and second points; and hence there was no-error in the answers. Of course, if the facts were undisputed,, or if they were found by the jury as stated in these two points, the legal conclusions of the points .were correct. But it was the-right of the court, when affirming the points, as it did, to add the-explanations or qualifications which appear in the answers if' there was evidence to support them. These qualifications were simply a more precise explanation of the facts presented in the-points — the very same facts — so as to bring them fully within the comprehension of the jury. There was undoubtedly evidence in the plaintiff’s own testimony that he did not absolutely and voluntarily give over the possession of the sheep and wool to the defendant, and agree that the defendant should keep them until the following Tuesday and that in the meantime he, the plaintiff, should prove his title to the sheep.

The learned court only said that if the testimony came up to* such a standard, and if such were the real facts, then there was-no conversion in the mere taking, and there inust be a demand made before suit brought. In this, of course, there was no error. So also in the general charge, when the court said: “I

take it to be the law that where the property is taken from the plaintiff, in disregard of his claim of ownership, by the defendant claiming the property as his own property, in such case a formal demand and refusal need not be made before suit will lie.” Certainly, there was no error in this. And as to the fact, the-defendant himself testified that he took possession of the sheep and wool under a claim of title in himself, that he kept them as-his own, that they were always his. The plaintiff testified that he gave them up because he thought he had to, in consequence-of there being a writ against him; and that in point of fact he-did agree to make proof of his title, but that when he went to the justice with his witnesses for that purpose he found the case was marked "Settled,” and he had no opportunity to submit his proof. All this is on the merits; but it shows that there was good reason for the court stating the law on the subject, and how it should be applied to the facts.

The answers to the first and second points being without error and there being conflicting evidence as to just what was agreed to by the plaintiff in regard to the defendant taking possession of the sheep and wool, it follows that the court was right in refusing the third point, and in refusing to take the ease from the jury.

Judgment affirmed.