Robinson vs. Hartridge-Opinion of Court.

version, and trover is not the appropriate form of action. 16 John., 74; 27 Ala., 229; 12 John., 300. If the act of sale was ratified or assented to, then if there was no breach of duty or fraud in the manner in which the act of sale was performed, the form of action is assumpsit. If there was a breach of duty or fraud in the act of sale, the remedy for the damage consequent upon the breach of duty, is a special action on the case. 3 Taunt., II; 12 John., 300; 13 Ind., 41; 16 John., 76; 12 Pick., 139. As to what is the true state of facts, we must leave for the jury to determine under proper instructions, and as there is to be a new trial upon other grounds, the parties will have full opportunity of showing the true state, of the case.

The third error assigned is that the court erred in refusing leave to defendant to file a plea denying plaintiff's title to the goods. Leave to file this plea was not requested until after the trial had commenced, and after the plaintiff had closed his testimony. The defendant's counsel, misapprehending the effect of his plea of the general issue, attempted to introduce evidence in denial of plaintiff's title, which was objected to as inadmissible, and the court very properly so held; whereupon leave to file a plea of the character stated was requested and denied. The decision of this question involves a construction of the seventy-fourth section of the act to amend the pleading and practice in the courts of this State. This section is as follows: "That it shall be the duty of the courts of this State, and of every judge thereof, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments shall be made with or without costs, and upon such terms as the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties, shall be so inade if duly applied for."

Robinson vs. Hartridge-Opinion of Court.

The first question which arises is, whether the filing an additional plea of this character, raising an entirely new issue and enlarging the defence, is an amendment or a proper means of correcting an error or defect within the meaning of this section.

The second question which arises is, was it the duty of the court to have permitted it at this stage of the proceedings under the circumstances of this case.

We have no doubt that the filing of a plea is authorized by the section, in the event it is necessary to determine the true question in controversy between the parties anterior to the trial. This section is almost a copy of the 94th section of the Common Law Procedure act of 1854, (17 and 18 Vict. Ch., 125,) regulating the pleading and practice in the English courts, and we find little difficulty in giving it construction.

In Cornish vs. Abingdon, (1 F. & F., 562,) which was an action for money had and received, a count in trover was allowed to be added at the trial. In Taylor vs. Shaw, I C. & R., 1,057, it was decided that "a judge at nisi prius may in his discretion allow a count or plea to be added."

These decisions were made under the Common Law Procedure act of 1852, but they are entirely applicable to the corresponding section of the act of 1854, when the question is of the same character with the one now being considered. The filing of such a plea should therefore be permitted if it is necessary to determine the true question involved in the controversy between the parties. From the evidence in this case, among the questions in controversy between the parties, is the question of title to the goods. The plaintiff himself went into evidence to prove title, a large portion of his proof being applicable to that subject. The defendant in his testimony states that upon receiving the account sales, he said to plaintiff that the cotton was sold, and that it was so poor he must conclude that it was not his, (plaintiff's,) cotton. In addition to this, the very great difference in the price re

Robinson vs. Hartridge-Opinion of Court.

alized for the four bales of cotton, sold by defendant's agents in New York, and the cotton sold by Brodie, the agent of Hartridge, which plaintiff claims was of the same quality and lot with the cotton received by the defendant, makes it a question whether the cotton received by the defendant belonged to the plaintiff. If the jury believe that the sale by defendant's agents was in all respects fair and for full value, or if indeed they believe the testimony of the agents and the witnesses examined in reference to the sale, they certainly cannot believe that the cotton sold by Lyles & Polhamus, (defendant's agents,) was a portion of a lot some of which sold about the same time for nearly three times as much. In order to reach a conclusion favorable to the defendant upon this testimony, they necessarily decide that the cotton received and sold by defendant's agents was not, and could not have been a portion of the identical lot sold by Griffin, and in coming to this conclusion they necessarily decide plaintiff has no title, as he claims no other than four of the twelve bags which he purchased of Griffin.

We think it appears from the testimony that the question of title was one in controversy between the parties, and that a fair trial disposing of all the questions requires that this question should be submitted to the jury: Was the application duly made? The statute makes it the duty of the courts at all times to allow such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties, if duly applied for. As shown, the English courts have gone so far as to insert at the trial a count in trover, where the declaration was in assumpsit for money had and received. This is a blending in the same case of forms of action arising from contract with those arising from wrongs independent of contract. They have also permitted a plea to be added at the trial. It is insisted that the plaintiff had closed his testimony and it was too late, that such an application was not a due application within the meaning of the statute.

Robinson vs. Hartridge-Opinion of Court.

It would be a very unjust rule which would permit the plaintiff to amend his declaration by adding new counts after he had commenced the introduction of his testimony, and permit him to so amend his pleading as to combine actions ex delicto with those ex contractu whenever necessary to determine the true questions in controversy, and at the same time to deny to the defendant the privilege of amending his pleas after he had commenced an examination of his witnesses, simply because the plaintiff had closed his testimony. In this case the court should have permitted the filing of the plea, the jury should have been discharged from the consideration of the case, (as they were not sworn to try the new issue,) the plaintiff given such time as was proper under the statute to reply to the amended pleading of the defendant, and when the issues were made up, the case should have again been submitted to a jury. If the plaintiff had desired a continuance, we think the court should have granted it, because under the pleadings the question of title was not in issue, and he was not expected to be prepared with any proof upon that subject. This course would have enabled the parties to try the true question in controversy, would have prevented any surprise of the plaintiff, and would have left no reasonable ground of complaint for either party. In this case, we control the action of the court below in the matter of amending the pleadings under and by virtue of the provisions of the act of January 7, 1853, which makes any order refusing to allow a motion to amend the pleadings the subject of review in this court. In the English courts the contrary practice prevails.

The judgment is reversed. The case is remanded to the court below, where the defendant will be permitted to amend the pleadings upon such terms as to costs as the court may direct, and for further proceedings not inconsistent with this opinion.

Watts vs. Hendry-Argument of Counsel.

JOSEPH B. WATTS, APPELLANT, VS. NEAL HENDRY, AP

1.

PELLEE.

A. sold to B. one hundred cattle of named age and part of a particular stock then running upon the range. B. paid the price agreed upon, and A. gave to him a delivery order upon his (A.'s) agent. C., with a knowledge of these facts, subsequently purchased of A. the balance of the particular stock. He (C.) took possession of the entire stock, and admitted to B. his right of property in and possession to the one hundred cattle: Held, That C., upon setting up a claim of exclusive ownership to the one hundred cattle, and upon denial of the right of B., was liable in trover to B.

This is an action of trover brought by the appellant against the appellee in the Circuit Court for Madison county. There was a judgment for the defendant upon the merits, from which this appeal is prosecuted.

The case is stated in the opinion of the court.

Baker, Call and Whitner for Appellant.

It is a rule in law that the general property in personal chattels creates a constructive possession, so that the owner may bring trover or trespass. 1 Chitty's Pl., 152; 7 Cowen, 329; 2 Saund., 873.

When the sale is completed, the vendor is only bound to deliver the subject matter upon tender of payment; if he refuse to do so, the vendee may take the goods in trover. Story on Sales, 388.

When the goods are such as to render manual delivery difficult or impracticable, or inconvenieut, in such case any formal act is sufficient which places the goods in the actual power of the purchaser, or which impliedly asserts that they are his property. Thus the transfer of the keys of a warehouse where the goods are stored, or a receipt ticket, sale note, bill of lading, or any type of title. 5 N. H., 371; I Hill, on Torts, 530; Story on Sales, sec. 311, 392.