delivered the opinion of this Court.
The exceptions brought up by the appellant in this case are threefold; the first and second apply to the rulings of the Court below on the evidence ; the third, to the prayers granted by the Court at the instance of the appellee. As the last is the most important, they will be examined in inverse order. Eor a full comprehension of the points raised by the appellant, it is necessary to take a cursory view of the pleadings.
The appellee’s amended nar. (the suit being instituted on the 5th of February, 1863,) contains five counts. The first two framed obviously, though not expressly, on the second section of Art. 30 of the Code of Public General Laws, entitled Crimes and Punishments, as amended by *124•the Act of 1862, ch. 114. The last three, sounding in trespass, substantially complying with the forms of the Code in Art. 75.
The first count averred that the plaintiff (the appellee) being in possession of and owner of a canal boat, loaded the same with one hundred and sixteen tons of coal, at Cumberland, and consigned and directed the same to be delivered to Heiston & Co., of Georgetown, D. C., to be conveyed upon said boat, upon the Chesapeake and Ohio Canal, to the consignees at Georgetown, and the defendant fraudulently received the coal without the consent of the owner, knowing the same to be so consigned, of the persons engaged in transporting the coal on the canal and converted the same to his own use.
The second count, reciting in part as in the first, further averred, that the defendant purchased the said coal without the consent of the owner, knowing the same to be so consigned, from the persons engaged in transporting the same and converted it to his own use.
The third, fourth and fifth counts, severally aver that the defendant “took the coal,” “seized and took,” “ wrongfully deprived the plaintiff of the use and possession of, and converted the same to his own use.” To this declaration the defendant pleaded that he did not commit the wrongs alleged therein, and that he did the acts cpmplained of by the license and consent of the plaintiff. After the testimony had been offered, the rulings as to which form the subject of the first and second bills of exception, which will be hereafter considered, the appellee and appellant severally offered his respective series of prayers, all of which were granted, the appellant excepting to those granted at the instance of the appellee.
It is suggested in argument, that notwithstanding the facts were submitted to the jury, with the law which should govern them, according to the theory of each •party, yet the propositions were so conflicting that it was *125impossible for the Court to determine which the jury adopted.
Where prayers granted on the same hypotheses of fact are so inconsistent, that conformity with one necessarily implies disregard of the other, they are calculated to mislead, and therefore erroneous ; but instructions founded upon different hypotheses are not liable to that objection. Moreover, it must appear, not only that the instruction was erroneous, but that the appellant was prejudiced by the error.
Without attempting to recapitulate the several hypotheses embodied in the respective series of prayers, it is sufficient to say that the proposition of the appellee was, that the title to the coal reverted to him upon the refusal of the consignee to accept it, and the latter had no right to authorize the sale of the coal on the consignor’s account, by the persons in charge, without the consignor’s consent.
In the language of the plaintiff’s first prayer, “that after such refusal the plaintiff, at his election, had the right to rescind the said contract of sale, and that upon such election the title to the same vested in him.”
The counter proposition of the appellant is not based upon the fact of refusal by the consignee, or the assumption of an election to rescind, but that if the consignees, on notice of the arrival of the coal could not unload it, and directed the persons in charge of it to sell it or do the best they could with it, which facts (if found) vested the title to the coal in Heiston & Co., and the plaintiff could not recover under the pleadings in the cause.
The “refusal to accept” is a very different disposition from that relied on in the appellant’s first prayer, and so, of all others in his series, the facts on which the propositions of the appellant are predicated, are materially different from those relied on by the appellee.
But it is said there was no evidence to sustain the appellee’s prayers, and they assume the fact of a rescission *126of the contract. There was evidence that those in charge of the boat, upon the refusal of the consignees, or their failure to receive the coal, had telegraphed to Cumberland for orders, and been ordered to sell for what they could get, and that théy did sell the same, but one load was taken by the appellant. This evidence, if believed, was sufficient to warrant the instruction granted, as far-as the same depended on the fact of his election to rescind. Since the amendment to the Code by the Act of March, 1862, chapter 154, it is too late to raise the objection to the prayer, that the fact of electing to rescind was assumed, that objection not appearing to have been raised and decided below.
The appellant further contends to show the error of the first and third prayers of the appellee, that the facts in evidence proved a delivery of the coal to the consignees, whereby the property in the coal vested in them.
This position may be legally correct, as between consignor and consignee, and yet such a special property exist in the former, as entitles him to an action for a tortious taking of the goods.
The authorities cited by appellant and appellee sustain this view.
“In case the vendee refuses to accept articles sold to him, the vendor may consider them as his own, if there has been no delivery, (of course an actual delivery is meant,) or he may consider them as the vendee’s, and has the right to sell.” This right is as much for the benefit of the vendor as the vendee — indeed it is for the protection of the former, particularly against loss, although it may enure to 'the benefit of the latter by reducing his liability pro tanto. 2 Parsons on Contracts, 484, Edition of 1855.
In the case of Sands & Crump vs. Taylor & Lovett, 5 Johns. Rep., 410, Kent, C. J., uses this language:
“ The vendor ought to have the benefit of that princi*127pie as well as the vendee. It would be unreasonable to oblige him to let the article perish on his hands and run the risk of the solvency of the buyer.”
Such was the position of the vendor in' this case, according to the evidence. The vendee refused to receive the cargo consigned to him. There ivas no alternative left the vendor but to sell the coal or abandon it. The right to sell necessarily involves a right of property, which he must have a right to protect, by action against third persons, who seized or carried it away without his consent.
That a consignor may support an action of trover or trespass at common law, further appears from 1 Chitty’s Pleadings, 6, 153, 170, note 3, (13 Amer. Edition ;) 7 Term. Rep., 12 ; 2 Wm. Saunders, 47, (b.)
As to the second prayer of the appellees, which referred to the measure of damages. By this, the jury were instructed, if they believed the defendant wrongfully took the cargo, without the consent of the owner, and the same belonged to the plaintiff; in that case they were not confined in this action, in fixing the damages, to the mere amount of the value of the coal when so taken by the defendant.
It is objected this instruction should not have been granted, because it was designed to enable the appellee to recover double the value of the coal under the Act of 1862, chapter 114, which could not operate on acts done beyond the limits of the State ; and, also, assuming the counts were partly in trespass and partly in. trover, the prayer being generally applicable to all the counts, was erroneous, as it prescribed a standard of damages not recoverable in trover.
In the consideration of the other prayers embraced in this exception, we have deemed it unnecessary to decide upon the effect of the Act of 1862, chapter 114, there being a right of action in the appellee independently of its provisions.
*128For the same reason we shall waive the first objection to the appellee’s second prayer, particularly as there is no necessary connection between the Act of Assembly and the prayer, in our judgment, when the latter is properly construed. There is not even a remote allusion to the double value of the property as the measure of damages, but a bare denial that the plaintiff is confined to the mere amount of the value of the coal, if the jury believed the defendant wrongfully took the cargo. Nor is the prayer of that general character which is supposed to make it erroneous, because it proposes a standard of damages not applicable to all the counts.
The facts on which it is founded are averred only in the counts in trespass, the gist of which is, that the defendant wrongfully took the cargo of coal without the consent of the owner; the special counts charged the defendant with fraudulently receiving and purchasing without the consent of the owner, etc., which are injuries of a distinctly different character in law.
The rule of damages, as applicable to the counts in trespass, was properly announced in the prayer.
A plaintiff in an action of trespass for taking away goods may give in evidence, for the purpose of enhancing the damages, the circumstances which accompanied and gave character to the wrong, and the jury had the right to consider those circumstances for the purpose of increasing the damages. Schindel vs. Schindel, 12 Md. Rep., 122; Snively & Keyes vs. Fahnestock, 18 Md. Rep., 395.
In the present case there were circumstances in evidence tending to aggravate the damages, and which, if believed by the jury, entitled the appellee to more than the mere amount of the value of the property in dispute.
Having disposed of the exception to the prayers, we will consider those taken to the evidence. The first bill of exceptions was taken to the admission of the testimony of the steersman of the boat “Boyer and Watson,” who proved, *129among other things, that he was in the hahit for a long time prior to the time when he ran that boat to Georgetown, in January, 1863, of boating coal on the Chesapeake and Ohio Canal, and frequently had seen boat loads of coal weighed, and thus acquired a knowledge of the •number of tons contained in different boats, and that he was satisfied that at the time the coal was taken from the Boyer and Watson ” she contained one hundred and sixteen tons. This exception is founded upon the theory that as the coal had been weighed, anda weigh bill stating the exact quantity had been given the plaintiff or his agent, it should have been produced as the best evidence of the quantity taken from the boat. The course of dealing proved by the plaintiff in the case, shows that the way bill was not evidence of a higher nature than that given by the steersman. The manifests or way bills were all made out at second-hand. The weighing at the mines showed only what was placed in the cars. Their contents were transferred to the boat, the weight of the respective car loads being transcribed and computed by the wharf agent, by whom they were sent in the form of a wharf ticket to the collector of tolls of the Canal Company, which officer makes out the way bill or manifest of the cargo. The way bill is given to the captain as his passport through the locks, and left with the collector at Georgetown. It is apparent from the several hands through which the article of freight passed, between the mines and its destination at Georgetown, where it was taken by the defendant, that the waybill was not better, if as good, testimony of the actual contents of the boat, as that of the steersman. The manifest was but a copy of a copy, whereas the oral evidence was direct and positive as such testimony in the nature of things could be.
The testimony of Joseph E. Potts, the exclusion of which was the ground of the appellant’s second bill of *130exceptions, was offered by tbe appellant to prove that the appellee had stopped the payment of the price of the coal to the appellant. The.witness deposed he did so by “a notice filed in the office, signed by himself and his attorney, dated 12th January, 1863." This was giving parol proof of a written instrument, without showing its loss or accounting for its absence, or laying any ground for the introduction of secondary evidence, and was properly rejected. There being no error in the rulings of the Court below in the several bills of exceptions by which the appellant was injured, the judgment below will be affirmed.
(Decided 29th May, 1867.)Judgment affirmed.