Appellants claimed damages for that defendant wrongfully took and, in a separate count, converted two bay mules about ten years old, and in separate counts — to the joinder of which there was no objection — that he wrongfully took and converted one bay mule about six years old. There was verdict and judgment for defendant.
As to the two elder mules: Defendant got them in a trade with W. C. Orr for two black mules. On February 17, 1919, Orr had mortgaged the two mules in controversy to plaintiffs, and plaintiffs claimed right and title under this mortgage. But on March 27, 1920, after the trade between himself and defendant, Orr had executed another mortgage to plaintiffs, covering the indebtedness secured by the former mortgage and something more. In this mortgage the two black mules were included; from it the two bay mules were omitted. Plaintiffs retained the mortgage of February 17, 1919. Defendant contended that with full knowledge of the relevant facts plaintiffs had accepted the mortgage on the black mules in substitution for the two bay mules, the former being worth very much more than the latter. As to this contention the evidence was in conflict, and the issue was properly submitted to the jury for decision. The jury found with the defendant, in effect, that the mortgage under which plaintiffs claimed had been extinguished by the later mortgage which did not include the mules in controversy. It cannot be said that this issue was erroneously submitted to the jury, or that the court erred in overruling plaintiffs' motion for a new trial.
As to the other mule, plaintiffs claimed right and title under a past-due mortgage of date March 20, 1920, executed and delivered to them by John W. Sharpley and W. C. Orr. Defendant claimed and had taken possession of this mule under a prior mortgage from Sharpley which he had foreclosed. Plaintiffs' contention seems to have been that defendant had traded this mule to their mortgagor Orr, who was in possession at the time of his mortgage to them, and so that they had acquired a mortgage title from him. Defendant at one point denied that he had traded this mule to Orr, insisting as a witness that he had got another mule from Sharpley, which he had traded to Orr for a horse, and that this last-mentioned mule was the mule embraced in Orr's mortgage. As to this, however, his testimony was not consistent, for at one point his testimony was in agreement with appellants' contention. There was therefore evidence tending to sustain the hypothesis of fact shown by the charge which we have designated on the margin of the record as "charge 1," and the court erred in its refusal to appellants.
The charge is not argumentative; it does not refer to the testimony of any particular witness; it merely hypothesizes facts which the jury would have been authorized to find as sustained by evidence.
Nor can its refusal be justified on the idea that the record fails to set out all the evidence. The bill of exceptions purports to contain all the evidence, and its recital to that effect is not contradicted by the statement that "Mrs. J. W. Lindsey" — probably meaning "J. W. Lindsey" — identified the mortgage under which defendant claimed title, or by the fact that the substance of that mortgage in every material respect is set forth rather than the instrument in hæc verba.
Our conclusion is that so much of the judgment under review as denied appellants' right to recover the two mules described in the first and second counts of the complaint should be affirmed. As to the mule described in the third count the judgment is reversed, and the cause remanded for another trial. The costs of appeal will be taxed against appellee.
Affirmed in part; in part reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.