Defendant's first assignment of error is that the court erred in overruling the motion for new trial. The tenth ground of the motion for new trial reads:
"The verdict of the jury is not sustained by sufficient evidence, and is contrary to law."
Under the view taken of the case here this assignment of error must be sustained. It is conceded that if there was a conversion It occurred March 8, 1921. This action was commenced November 26, 1921. The only proof offered as to the value of the cotton was proof of its market value during the latter part of September, 1921. Section 5999. Comp. Stat. 1921, so far as material to be considered here, provides:
"The detriment caused by the wrongful conversion of personal property is presumed to be: First, the value of the property at the time of the conversion with the interest from that time; or, second where the *Page 6 action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party."
In this case plaintiff was informed by Rollins on December 16 that the ticket for this bale of cotton was lost. Assuming this testimony to be true, he further testified that he knew the holder of the ticket would be entitled to take the bale from the cotton yard. Yet he never visited the yard, never informed the yard man it was his cotton, nor made any inquiry about the bale he claimed to own, against which he knew there was a ticket outstanding, until the following September. Then, learning of its sale by defendant and delivery of the ticket to the purchaser, he waited until November 26 to begin his action. These facts do not constitute reasonable diligence within the meaning of the second subdivision of section 5999, supra, so as to entitle him to damages thereunder. The question of what constitutes reasonable diligence under this section is one of law for the court. Funk v. Hendricks, 24 Okla. 837,105 P. 352. Therefore plaintiff must recover, if at all, under the first subdivision of the above section.
The jury returned a verdict in plaintiff's favor of $84 There is not a syllable of testimony in the record that the cotton was worth $84, or even 84 cents, in March, 1921. It is in evidence that the defendant sold the bale for $10, and that it was damaged. With the record in this condition the verdict of the Jury is wholly without support in the evidence, and is therefore contrary to law.
Other errors complained of will not likely arise on another trial. The judgment of the trial court should be reversed with directions to grant the defendant a new trial in this action.
By the Court: It is so ordered.