Hudmon Bros. v. DuBose , 85 Ala. 446 ( 1888 )

BOMEKYILLE, J.

In Lee v. Matthews, 10 Ala. 682; s. c., 44 Amer. Dec. 498, decided as far back as 1846, the rule was settled by this court, in accordance with the English authorities, that an agent, who intermeddles with the goods of another, is guilty of a conversion, if the same act of intermeddling by his principal would, under like circumstances, have rendered the latter liable in trover. It was! said by Ormond, J., that “every act of intermeddling with, the goods of another is a conversion; and it is no answer to the true owner, that the person so receiving the goods was ignorant of his title, or that lie received them for the use or benefit of another.” The same rule is reiterated in Perminier v. Kelly, 18 Ala. 716, decided in 1851, and is fully sustained by the weight of authority. — Marks v. Robinson, 82 Ala. 69, 83.

The only exception to this rule, which our decisions have established, is stated in Nelson v. Iverson, 17 Ala. 216, the authority of which is recognized in Marks v. Robinson, supra (1886). This exception is, that the mere receiving of goods by one who restores them to his bailor, before notice that such bailor’s possession was wrongful, is not a conversiqn.

Under the above principles, the appellants were clearly guilty of a conversion, in receiving the appellee’s cotton and shipping it on his order, unless they come within the exception announced in Nelson v. Iverson, supra. It is insisted in argument, that such shipment is legally tantamount to restoring the cotton to the possession of the bailor. The rule, in our judgment, can not be construed to go this far. The exception in question only embraces the act of .restoring the thing bailed to the mere possession of the bailor — a substantial restoration of the orignal status in quo of the property. It doe_s_ not include a restoration of^ the bailoP&Jjonfimon — by_an—acl,__the_jsssenffaTjnature of jpiifiELis-in. defiance of the. ..true — owner’s title, or the', probable.-consequence of which will. be to., put-the property; beyond his reach. And such is the act of conversion here imprtecTfd the appellants. The rulings of the Circuit Court touching tl: 's point are, in our opinion, free from error.

The registration of the appellee’s mortgage on the cotton in controversy was constructive notice to the appellants of the existence of the mortgage, and as binding on them as actual notice would have been. — Mayer v. Taylor, 69 Ala. 403; s. c., 44 Amer. Rep. 522; Heflin v. Slay, 78 Ala. 180; Marks v. Robinson, 82 Ala. 69.

The judgment is affirmed.