Hagood v. Elson , 21 Tex. 506 ( 1858 )

Roberts, J.

This is a suit brought by Elson against Ha-good for twenty-six bales of cotton, alleged to be converted to his own use, or negligently or fraudulently destroyed, by fire, &c.

The suit being filed in April, 1856, and the witness MeCatchen some time in the year 1856—(thinks it was in the Spring—was there in April—also in March)—heard a conversation in which Hagood said to Elson, that “ he had some money there subject to his order for that bale of cotton, which was missing ; that he had sent it off and got returns for it.” This renders it quite probable that the bale of cotton was sent off by Hagood, and thereby converted before the commencement of this suit. He was shown to be a warehouseman, and not a commission merchant, and Ms sending it off and selling it was a conversion which rendered him liable without a demand. The testimony establishing his liability for this bale of cotton is believed to be more certain than that all of the twenty-six bales of cotton, except this one, was destroyed by the fire.

This view of the issue, and the evidence, obviates the necessity of considering—whether or not a refusal to the written demand was proven, and whether or not the Court erred in admitting testimony in relation to a verbal demand—none such having been alleged.

We think the appellant has no good ground to complain of the verdict of the jury. Judgment is affirmed.

Judgment affirmed.