Warren & Co. v. Barnett , 83 Ala. 208 ( 1887 )

STONE, C. J.

— The legal principles governing this case were considered and determined when it was before us at the last term. — Barnett v. Warren, 82 Ala. 557. When the case returned to the Circuit Court, some change was made in the testimony, but that change did not benefit the defendant. It made clear that which, on the former trial, furnished only probable cause for inference by the jury. The testimony, as uoav presented, if believed, shows a clear right of recovery in plaintiff, relieved of all necessity of inferences to be draAvn by the jury.

The case, as now presented, shows clearly that Warren, when he received the rent obligations from Belser & Parker, was informed they were contracts of sub-tenants of lands, which they, Belser & Parker, had rented from one Barnett; that before Belser gave to Warren the check on Lehman, Durr & Co., for five hundred dollars, he informed him, Warren, that he could only check on the proceeds of the cotton, which was the cotton delivered under the rent contracts he, Warren, held as collateral, and the check proves that it was given on that fund; that before that time 37 bales of cotton, grown on the Barnett place, had been shipped to Lehman, Durr & Co., of which they had sold 34 bales, and had the money, and that the check on them was honored and paid to Warren on the faith of the Barnett rent cotton, and of Warren’s possession of the rent contracts, under which the cotton had been delivered.

Warren testified, that he did not know that the rent was unpaid to the paramount landlord, and he did not know the cotton had been grown on the lands which Barnett claimed to control in right of his wife. He admitted, that he knew the cotton was grown on the “ Lillie Barnett place.” He does not deny, but admits knowledge, that Belser & Parker were tenants of a plantation owned by one of the Barnetts, and that the rent contracts he held as collateral, were those of sub-tenants under Belser & Parker. His ignorance of the particular Barnett who was paramount landlord can not avail him. He knew that Belser & Parker were themselves tenants, and that the rent contracts he held, as collateral were those of sub-tenants under them. This was enough to put him on inquiry, which would have led to the discovery of the true landlord,'and that a part of the rent was unpaid. It was equivalent to actual notice. — Lomax v. LeGrand, 60 Ala. 537.

In the present record, unlike the one before us on the former appeal, the testimony tends to show that Lehman, Durr & Co., when they received and sold the cotton, knew it was grown on lands which Belser & Parker had rented from Barnett. This may tend to show that Barnett could have maintained an action against them, had he chosen to assert the right. It is no answer to the suit against Warren. It frequently happens that the identical chattel becomes the subject of two or more conversions. In such case, the owner may elect which wrongdoer he will sue; or, he may sue each separately, but can have but one satisfaction..

The first charge asked by defendant was rightly refused. In the absence of proof as to the character or quality of a married woman’s separate estate, the law raises the presumption that it is statutory. — Steed v. Knowles, 79 Ala. 446; Boyett v. Potter, 80 Ala. 476.

The general charge was rightly given -at the request of the plaintiff, and there was no error in refusing either of the charges asked by defendant.

Affirmed.