Bradfield, Morson & Co. v. Patterson , 106 Ala. 397 ( 1894 )

COLEMAN, J.

— The principles of law which govern this case are simple and well established. The first count of the complaint, avers that the amount sued for is due upon an account. It is somewhat indefinite, in not stating the subject-matter or consideration of the account, but there was no objection to it, and it is sufficient to support a judgment after verdict.

The owner of goods in the possession of another party, who, without legal excuse, refuses to deliver them to the owner on demand, may sue in tort for a conversion, or he may waive the tort and treat the wrotigdoer as a purchaser and sue and recover upon account for their value. Pharr & Beck v. Bachelor, 3 Ala. 237; 1 Brickell Dig., 150-151, sub-div. VIII. The failure to recognize this principle, is the error in the argument of appellants. It is true, as contended for, that the plaintiff could not recover on the count of the complaint for money had and received, unless he had established the fact of a sale by the defendants of the stock and the receipt of the money, or show that such a length of time had elapsed as to raise a presumption of sale. — Moody v. Walker, 89 Ala. 619; 1 Brick. Dig., 140, § 74. But this, by no means conflicts with the other principle, that if he refused to deliver to plaintiff, upon demand, the stock which rightfully was the property of the plaintiff, that he would be liable for its value upon an account.

The oral charge given by the court, presented the issue fairly to the jury, to determine whether by express or implied authority, the defendants were authorized to invest nineteen hundred dollars in the purchase of the stock instead of o.ne thousand dollars, and the jury was instructed, if they thus found that the plaintiff could not recover. The verdict of the jury 'shows that this issue was found against the'defendants.

Charge No. 1 given for plaintiff asserts a correct proposition of law, and there was no error in giving this instruction.

The charges requested by the defendants were all properly refused. Each of these charges ignores the principles of law, which authorized a recovery upon the first count. The evidence showed that plaintiff’s money was invested in the purchase of Bessemer stock by the defendants, as his agents, that the stock was recognized and held by the defendants as the property of plaintiff, a demand for' it and the refusal to deliver it. The plaintiff had the right under the circumstances to waive the tort and treat the defendant as a purchaser, and recover upon an account.

Affirmed,