Mitchell v. Stephenson

Adkins, J., delivered the opinion of the Court. This is a suit in trover for the conversion of a fur coat.. The plaintiff testified that she bought the coat from the defendant on February 3rd, 1928, for $225; that she wore it about two dozen times and put it in a bag so nothing could, reach it; that it was an unusually large coat, a forty-two in. size; that she carried it back to the defendant to be taken, care of during the summer; that she was told the lining-needed cleaning and also oiling was suggested, which she ordered to be done at a cost of twenty dollars, including storage; that, when she went to- get the coat on December 1st following, a coat was delivered to her which was not hers; that she-protested it was not her coat, but the clerk insisted it was,, and, as she was in a hurry to keep a theatre engagement with her husband, she went out with it, and while in the- theatreshe felt the bare skin and at once went back to the store and saw Mr. Mitchell, one of the defendants, and told him it was not her coat, but he insisted that it was; that she went back again on the 3rd and the 11th and demanded her coat, and offered the coat back, and told him she was tired of carrying ■ the coat back, but it was refused; that the difference between the coats was in. the quality and size, the one substituted for hers being a thirty-sis; that the original price of the coat she-bought was $350, but she bought it at the reduced price. “Three other witnesses for the plaintiff testified that they saw plaintiff wearing a coat soon after she said she-brought it home, and the one shown at the trial was not the-one they had seen. Defendant’s testimony was in conflict with this, and tended to show that the coat delivered to plaintiff ⁵⁷⁷ on December 1st was tbe same coat she bought the previous February.

The jury found a verdict for the plaintiff for $200. This appeal is from a judgment on that verdict. There were four exceptions reserved to rulings on testimony, and one to the ruling on the prayers and special exception. The three witnesses referred to said that, during the winter in which a coat was purchased by plaintiff from the defendant, they saw the plaintiff with a coat, of which they gave a detailed description, which corresponded with the description given by the plaintiff, at the trial, of the coat she claimed she had bought and returned for storage—two of them that they saw the coat a number of times.

The four exceptions on testimony were to permitting these’ three witnesses to testify that the coat returned to plaintiff was not the coat they had previously seen, and the ground of these exceptions is the same, viz: that none of the witnesses were in a position to know that the coat they had seen was the one plaintiff had purchased from the defendant. It is argued that the coat they saw might have been a borrowed coat or one sent by some dealer, other than defendants, on approval; or another coat belonging to plaintiff. This argument would be cogent if we were considering the weight of the testimony. But that was for the jury.

The testimony was relevant, just as would have been testimony by witnesses for defendant, if offered, that