Smith v. Duke

64 S.E. 292, 6 Ga. App. 75, 1909 Ga. App. LEXIS 184

• Court: Court of Appeals of Georgia
• Decided: April 15, 1909
• Docket: 1497
• Status: Published

Opinion

Powell, J.

1. The plaintiff sued, in trover for one sixty-incli solid Ohlen saw, No. 16,418. At the trial he proved that he had loaned the defendant a sixty-inch solid Ohlen saw, but did not remember the number. The defendant refused to return the saw after demand. There was no other saw in controversy. Held, that the failure to prove the number was immaterial.

Trover, from city court of Floyd county — Judge Hamilton. October 10, 1908.

Argued December 14, 1908. — Decided April 15, 1909. M. B. Eulanlcs, for plaintiff in error. John W. & G. E. Maddox, George A. E. Earns ■& Son, contra.

2. Where the plaintiff in trover elects to take damages instead of the property, he may recover the value of the property at the date of the conversion, and either hire or interest from that date, according to whether the hire would be worth more than the interest or not. O’Neill Mfg. Co. v. Woodley, 118 Ga. 114 (44 S. E. 980); Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S. E. 24).

3. The evidence demanded the verdict rendered, and there was no error in directing it.

4. Under the facts disclosed by the record, the court deems it proper to grant the motion of the defendant in error that damages for delay be awarded. Wilcox v. Leffler Co., 3 Ga. App. 740 (60 S. E. 357).

Judgment affirmed, with damages.