Lucas v. Trumbull

1. The declarations of the defendant to his own family, at his own house, of his intention to hire the horse and carryall for a given purpose, and his subsequent declarations that he had hired the horse and carryall to go to Mount *310Auburn, were properly rejected, on the objection of the plaintiff. They formed no part of the evidence of the actual contract made elsewhere with the plaintiff.

2. The terms of the bargain being a subject of controversy at the trial, the court properly left it to the jury to find what the terms of the bargain were, with the instruction that if the hiring was to go to a certain place and the defendant drove to a greater distance and beyond that place, that was a conversion of the horse and carryall, the defendant was liable for all damages subsequently occurring, and proof that the accident arose from the fault of the horse would not exonerate the defendant.

3. The court properly declined to give instructions to the jury that the tort was waived by the subsequent acts of the plaintiff in taking into his possession the horse and carryall, and presenting to the defendant a bill for the amount of repairs upon the carryall and a charge of three dollars for the hire of the horse and carryall. The present case differs from that of Rotch v. Hawes, 12 Pick. 136. In that case the owner of the horse had, with full knowledge of the conversion, received payment for the use of the horse for the whole distance travelled, and it was held that such receipt of payment was a waiver of the right to recover damages for improper driving of the horse while thus in his possession, by an action of trover for a conversion of the property. We do not understand that any such payment was received here. The defendant did not put himself in the position to insist upon a waiver of the tort. The ruling of the court, submitting the question whether the plaintiff had waived the conversion and assented to the use of the horse and carryall for the Mount Auburn route to the jury, as a question of fact upon all the evidence, was sufficiently favorable for the defendant.

4. The ruling of the court upon the question of damages was correct. Exceptions overruled.