
    31670.
    Air Reduction Sales Company v. McDonald.
    Decided September 3, 1947.
   Gardner. J.

Air Reduction Sales Company brought a trover action against J. T. McDonald. The material allegations of the petition are that the defendant was in possession of “three oxygen cylinders, 220 cubic feet capacity. Nos. 127105, 271534, 303697, and two acetylene cylinders, number 4 size, nos. S82901, and S20532, of the value of ninety dollars, to which your petitioner claims title; ” and that the defendant refuses to deliver the property to the plaintiff’. The defendant answered the petition and stated “that he is not in possession of the property alleged,” and further denied that the plaintiff had any title to the property. The case proceeded to trial before a jury, which returned a verdict for the defendant. A motion for a new trial was filed on the general grounds. Afterwards an amended' motion adding three special grounds was filed and allowed. As we view the case, it is controlled by one issue, the evidence, and that is this: The whole evidence fails to show that the property as described in the petition was in the possession of the defendant. The extent of the evidence is to the effect that the defendant took possession of three oxygen cylinders and two acetylene cylinders from three persons who were using them to scrap a sawmill boiler which belonged to the defendant. But the evidence fails to show that these articles of property were the ones described in the petition. The plaintiff proved that the numbers as alleged in his petition were indelibly stamped in the metal of the cylinders, but there is no evidence that the cylinders which the defendant seized from the trespassers were so stamped. Since this is true, it controls the case, and it is unnecessary to discuss the other errors assigned.

The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.

Judgment affirmed.

MacIntyre. P. J., and Townsend, J., concur.

Robert D. Tisinger, for plaintiff.'

D. B. Howe, G. V. Driver, for defendant.  