The fact that defendant received the mules from the plaintiff’s possession creates a prima facie presumption of ownership of them by the latter.
A majority of the court hold that the letter, taken in connection with the acceptance by the plaintiff of the terms proposed in it, extended the duration of the bailment until Saturday night and no longer, and that the use of the mule by the defendant on the following' Monday, in the absence of all proof of consent by plaintiff of its use on that day, was unauthorized and, therefore, a conversion for which he is liable in this action. Their opinion is that the proposition contained in the' letter, after its acceptance by plaintiff, became a bind*303ing contract between the parties as to the matters referred to in it, thereby modifying the original contract as to the length of time that the mules were to be used by defendant and as to the person who should drive them. That the plaintiff bound himself to permit the defendant to use the mules during the remainder of the week to be driven only and during that period by the person designated in the letter. That at the end of the week, the defendant was bound to return them to plaintiff, or, at least, not to plow them, and further, not to permit the person named in the letter to plow them on Monday following as the plaintiff only -consented to his doing so the remainder of that week. This holding results in reversing the judgment for error in giving written charge No. 5 at the request of defendant.
While I concur in the reversal, I cannot concur in the construction placed upon'the letter by the majority of the court. It is clear, and' for that matter conceded, that it does not embody all the terms of the contract. The only matters involved in the contract between the parties referred to in it, was the change of drivers and a request that defendant be permitted to work the mules the remainder of the week. The original contract was a hiring by the hour, and which could of course be terminated by either party at the end of any hour, and until terminated 'by the one or the other, it continued in force. Construing the letter in the light of all the circumstances shown in evidence surrounding the making of the contract, of which it was a modification, there is nothing in it, which denotes an intention that the defendant was not to have the use of the mules after the expiration of the week. When the purpose for which it was written was accomplished, that of securing to defendant the right to the use of the mules during the remainder of the week, to be driven by the person named in it, in the absence of some positive act or assertion by the plaintiff terminating the bailment, it continued under the original contract- So, then, in mv opinion, the right of the plaintiff to recover in this action is dependent upon whether the mule, alleged to have been converted by defendant, was used 'by him in violation of the terms *304of the bailment. There is no dispute, that the mule was hired to plow a certain piece of land and that it was so used in a -careful manner. The controverted fact is,, what was the contract as to the way or manner it was to be used. The plaintiff testified, that it was agreed that the mule was to be worked, in conjunction with its mate, to a two-horse Oliver -chilled plow. The de-defendant swears that no such agreement was made; that the kind, of plow was not mentioned. The contract of bailment being in parol, it is a question for the jury to ascertain what was its - term in this respect. If they find the -disputed fact according to plaintiff’s contention, the working of the mule to a three-ho-rse riding plow, was a -conversion for which the defendant was liable in this action.—Cartlidge v. Sloan, 124 Ala. 596, and authorities therein -cited. On the -contrary, should the jury find this -controverted issue of fact in favor -of the defendant, their verdict -should be for him. Charge 1 refused to the plaintiff assumes the existence of this disputed fact, and predicated the plaintiff’s right to recover solely upon the finding by the jury that the mule was worked to a -different plow than the one for which it was 'hired, notwithstanding they may have found for the defendant on that issue.
Charges 1, 3 and 4 given at the request of defendant, each, in my opinion, assert correct propositions of law and were proper.
In the absence -of evidence tending to show that the plaintiff consented to the use of the mule in the way it was used, -charge 2 given at the request of defendant was error.
Charges 5 and 6 given for defendant asserted his right to use the mule until the plaintiff notified him not to use it longer, notwithstanding his manner of using it may have 'been in violation -of the terms of his contract. If in violation -of the terms of the -bailment, it cannot be affirmed as matters of law that defendant had the right to use it to the prejudice of the plaintiff’s right to recover for its Conversion-
Reversed and remanded.