Street v. Nelson , 67 Ala. 504 ( 1880 )

STONE, J.

— It was of prime importance in this case to prove a joint ownership in plaintiffs of the property charged-to have been converted by defendant. Ownership of personal property, as a rule, can be proved as a fact by oral testimony, without producing the documentary evidence which creates the title, unless the question of such transfer of title arises between the alleged parties to the conveyance. When that is the case, and the question of transfer vel non is the direct issue in the cause, then the highest and best evidence must be produced, or its absence accounted for.— Graham v. Lockhart, 8 Ala. 9; Dixon v. Barclay, 22 Ala. 370; Snodgrass v. Br. Bank, 25 Ala. 161; 1 Brick. Dig. 856, § 752; May v. May, 1 Port. 229; Peck v. Dinsmore, 4 Por. 212; Cloud v. Patterson, 1 Stew. 394.

It was deemed necessary by appellees, and probably was, to prove that Kelly and Co. were under a contract with the Alabama Iron Co. to deliver to it 300,000 bushels of charcoal. That contract, it seems, had been modified, so as to leave the burden of its performance on Kelly & Nelson, two of the members of the firm of Kelly & Co. As the case appears in this record, it would seem that this burden on Kelly & Nelson was, to some extent, inducement to the contract with Bobbs Bros., and tends to explain why Kelly & Nelson contracted with them to manufacture and deliver coal to the Alabama Iron Co. If this be the sole purpose of such evidence, it was only incidental to the matters in issue in this cause, and the rule requiring the highest and best evidence does not apply. We are not informed what the terms and details of the contract were, by which Bobbs Bros, bound themselves to burn and deliver coal. If that contract, adopted in whole or in part, or referred to the contract Kelly & Co. had made with the iron company, so as to render the provision of the latter at all material in interpreting the former, then a different rule would prevail, and the original ought to have been produced, or its absence accounted for.

The contract between Kelly, or Kelly & Co. and Bobbs Bros., presents a different question. That defines-and determines the relative rights of the parties as between themselves, and was a main issue, if not the main issue in this cause. The Circuit Court erred in not requiring the production of that contract in evidence, as the best exponent of its terms, and of the relative rights of the parties to this suit. In the sixth charge, given at the instance of plaintiffs, the court also erred. The jury were at liberty, in assessing damages in trover, to fix the value as proved at any time between •the conversion and the trial, but they are not bound to adopt the highest. See Loeb & Bro. v. Flash Bros., at the present term.

Charges three and five given, raise a question which the present record does not enable us to answer satisfactorily. As we have said, the terms of the contract between Kelly <fc Co. and Robbs Bros, are not shown. Neither are we properly informed whether Robbs Bros, have been paid for the work they performed in converting the standing timber into coal, or what was the character of their possession. "Whether they had a lien for the work they had performed, which would deny to plaintiffs the right to sue without payment or tender of their wages, if wages it be ; and whether plaintiffs should not have tendered to Street, as succeeding to Robbs Bros.’ claim and right, before bringing their suit, are questions which the written contract will shed light on, probably. We simply state these questions for the purpose of saying they are not decided ; and the testimony may show them to be wholly immaterial. See 1 Addison on Torts, 537 et seq.; Cooley on Torts, 55-6.

Reversed and remanded.