Gray v. Frazier

Ubneb, J., delivered the opinion of the Court. On this appeal from a judgment for the plaintiff in an-action of trover, the principal question for decision is raised by an exception to the refusal of the trial court to withdraw the case from the jury. The suit is based upon a claim that the defendant, converted to his own use certain dresses and material, belonging to the plaintiff, and delivered by her to the defendant’s wife, who- was a dressmaker, for alteration and other work, which was unfinished at the time of the wife’s death. The dressmaking business was conducted in an upper story of the house-which the defendant and his wife both occupied, though they were living in a state of marital separation.

After her death, the plaintiff called at the home on a visit of condolence, and in the course of her conversation with the defendant on that, occasion mentioned to him, as she testified, that she had left some garments and dress goods in his wife’s possession, and the defendant said that he would arrange with a woman, who had been employed as his wife’s assistant in the business, to identify and separate the dresses belonging to the various patrons, and that, if the plaintiff would return in a week or ten day's, she could obtain any of the clothing to- which she was entitled. According to the plaintiff’s testimony, she returned as the defendant had suggested, and he then told her that he did not know “whose clothes were upstairs,”- and while he was not afraid to trust her, he wanted her to get Mrs. Bishop (the former assistant) to identify the dresses “before he would let anything go- out of the house,” but he ¹⁹¹ said that he did not know where Mrs. Bishop lived. Subsequently, the plaintiff said, she located Mrs. Bishop, and after repeatedly failing to see the defendant when she called at his home, and after further delay because of an injury to her foot, she finally found the defendant at home and asked him to remain there while she brought Mrs. Bishop to the house, .and he said it was not necessary to do so, that she should go upstairs and get what belonged to her, and the defendant went up with her, but all of her dresses, except one, had disappeared, and “everything had been renovated.” On her visit to the house immediately after the defendant’s wife died, the plaintiff, as she testified, went upstairs and saw all of the dresses and goods specified in her claim. It may be inferred from the evidence that the defendant was thereafter in sole charge and control of the pLace where his wife’s dressmaking business had been carried on, and had assumed the duty of having the dresses of her customers assorted and properly distributed.

The former assistant of his wife did not testify in the case, and was not summoned by either party, although she is said to have promised the plaintiff to .appear as a witness. While the evidence is conflicting in some respects, the plaintiff is entitled to have the legal sufficiency of her testimony determined independently of its contradiction by the defense. It was a legally permissible inference from the evidence that the defendant succeeded his wife in the custody of the clothing described and claimed by the plaintiff, that she was its lawful owner and rightfully demanded