Cook vs. Pinkerton. been stated to be the law is amply sustained by Blackwell on Tax Titles, Cooley on Taxation and Desty on Taxation, and the authorities referred to by these text writers. Judgment reversed. Cook vs. PINKERTON. 1. A horse зwap is complete when the terms of exchange have been finally settled, and each party has relinquished possession of one of the animals and acquired possession of the other. For one of the parties afterwards, without consent of the other, to resume possession of his former property is simply a tort, and does not reinvest him with title. 2. A sale and delivery to a third person after such wrongful resumption of possession will confer no title on the purchaser. 3. In an action by the owner against the purchaser, conversations and declarations which were a part of the res gesta of the swap and its incidents, or of the subsequent tort, are admissible in evidence, to show how the plaintiff acquired title and possession, and how he lost possession without parting with title. May 25, 1888. Torts. Title. Evidence. HARRIS. Res gesta. Before Judge City court of Macon. September term, 1887. Reported in the decision. DESSAU & BARTLETT, for plaintiff in error. S. A. REID and HARDEMAN & DAVIS, contra. BLECKLEY, Chief Justice. The action being one of trover to recover for a horse, the question was, which party had acquired Pope's title, or rather whether Pinkerton, who was the plaintiff below, had obtained it or failed in obtaining it. The facts were, that Davis, a stable-keeper, was Pinkerton's Cook vs. Pinkerton. agent, and as such had control of a mule which was hired to Solomon. Pope owning a sorrel horse, it was agreed between him and Davis that the horse was to be exchanged for the mule. Davis selected a negro, whose name was Perry, and Pope employed the negro to go after the mule. The negro took the horse, Pope telling him that it was Pinkerton's horse, to the wagon where the mule was at work, detached the mule from the wagon, hitched the horse in his place and brought the mule to Pope. Pope made two efforts to sell the mule, but failing to do so, he directed Perry to take the mule back and bring him the horse, and so Perry did. Perry carried the mule back to the wagon, obtained the horse and carried the horse to Pope. Who was in charge of the wagon does not appear, but it may be inferred that it was Solomon, the person who had the mule hired. Some days afterwards the mule was carried to the stable of Davis, and was there kept by Davis as Pope's mule for some two months. What finally became of it does. not appear; but it does appear that Pinkerton never had any more to do with it. The evidence indicates that after this transaction was complete in all its parts. as to the exchange of the mule for the horse and the unauthorized return of the horse to Pope, he sold the horse to Cook; the decided indication is that, as between the title of Pinkerton and the title of Cook, Pinkerton's was the senior, and we think there is evidence enough to show that Pinkerton acquired title; that the exchange of these animals by the parties was complete; and that if this action had been brought against Pope, there would have been no difficulty in a recovery. Then, if there could have been a recovery against Pope, we see no reason why there should not be against Cook, who could derive no better title from Pope than Pope had at the time of the sale. Calhoun et al. vs. Calhoun. Evidence was admitted of what Pope said to the plaintiff, and what he said to Davis and what he said. to Perry. Pope's declarations were admissible as a part of the res gestæ, all of them being made while the transaction by which he parted with the title to the horse to Pinkerton was in progress, or else while the means by which he resumed possession of the horse were in progress. So that the declarations can all be referred to the res gesta, either of the contract of exchange between Pope and Pinkerton, or of the wrong done by Pope in resuming possession of the horse. There was no error committed by the court in receiving them in evidence. The result is that the judgment denying a new trial is affirmed. The head-notes are to be read as a part of this opinion. Judgment affirmed. CALHOUN et al. vs. CALHOUN. To justify the admission of secondary evidence as to the contents of a a lost deed, or a deed without the jurisdiction of the court, not only the existence of the deed must be shown, but it must be shown to have been properly executed. July 11, 1888. Deeds. Evidence. Before Judge KIBBEE. Montgomery superior court. April term, 1887. Reported in the decision. B. R. CALHOUN and ROBERTS & SMITH, for plaintiffs in error. A. C. PATE, contra. SIMMONS, Justice. Calhoun et al. vs. Calhoun. J. R. Calhoun et al. brought complaint for land against Samuel H. Calhoun. On the trial the plaintiff's proposed to prove by John Ladson the contents of a deed shown to be in the State of South Carolina and never to have been in Georgia, conveying certain property to one Patterson, in trust for Mary McElrouath, free from the control, etc. of any husband she might have, for and during her life, and at her death to be equally divided. among her children, share and share alike. Counsel for the plaintiff stated in their place that they expected to prove that the plaintiffs were the only children or legal representatives of children of the said Mary, who, subsequently to the execution of said deed, married James. J. Calhoun, Sr.; also, that the land in dispute was purchased with the proceeds of the sale of said property conveyed in said deed by the said James J. Calhoun, Sr., he taking the deed to the land in his own name; and that the defendant, who is his son by said Mary, purchased the land from him with full notice of all the facts; also that the said Mary died before the commencement of this suit. It was further shown that the deed was recorded over thirty years ago, in South Carolina, and that it was in existence a year or two ago, and that the plaintiffs had made no effort to get the original deed or a certified copy thereof. This evidence was rejected by the court. The plaintiffs closed their case, and the court granted a nonsuit. Whereupon the plaintiffs sued out this bill of exceptions, alleging error in the refusal of the court to allow the testimony of Ladson. It will be observed that while the plaintiffs proposed to show the existence of the deed two years prior to that time, they did not offer to show its execution. We think the proper rule of law in regard to the admissibility of secondary evidence is, not only that the plaintiff must Van Winkle & Company vs. Wilkins et al. show the existence of the deed, but that he must show that it was properly executed. It is possible that the deed may have been written and signed by the grantor, and yet may never have been executed according to law. In the case of Durham vs. Holeman, 30 Ga. 624, it was held that, "before secondary evidence of the contents of a lost deed can be gone into, the existence and execution of such deed must be established by proof." See also Bigelow vs. Young, Id. 123. This deed being beyond the jurisdiction of the court, it was the same as if it had been lost; and the cases just cited apply. In the case of White vs. Clements, 39 Ga. 232, it was held that "the contents of a paper beyond the jurisdiction of the court and not in the power of the party wishing to use it, may, without doubt, be proven by a proven copy. But it must be proven that such an original paper does or did in fact exist, and was duly executed." We think, therefore, that the court did right in excluding this testimony; and the judgment is affirmed. VAN WINKLE & COMPANY US. WILKINS et al. 1. Failure of machinery to be of the class contracted for, and to be completed by the time stipulated, are both matters for reducing the contract price in a suit for the same, when damages result. 2. The measure of damage as to the class or quality is the difference in value between the machinery contracted for and that furnished. The measure of damage for delay is the loss sustained, if the loss be on cotton-seed which have deteriorated by keeping, the difference in value of the seed as they were when the machinery ought to have been ready, and as they were when it was actually ready for their manufacture, is the measure. 3. Damages which may reasonably be considered as in contemplation of the parties when the contract was made are not too remote. Hence, damage to cotton-seed purchased in anticipation of starting an oil-mill at the time appointed in the contract for machinery, may be recovered when such purchase was foreseen and expected by both parties. |