King v. Franklin , 132 Ala. 559 ( 1902 )

DOWDELL, J.

— This was an action in trover for the conversion of a mule brought by the appellee against the appellant. In the course of the examination of the plaintiff as a witness in her own behalf, she was permitted to testify against the defendant’s objection “that when one Ricks, agent of the defendant, came after the mule, claiming the same under a mortgage given by plaintiff’s father, Nathan. Napier, to the defendant that her attorney advised her that the mule was her property and to object to anyone taking it but an officer of the law.” The question of a voluntary surrender of the mule by the plaintiff to defendant was a disputed fact in the case, and that part of the statement made in the presence of defendant’s agent by her attorney, “to object to anyone taking it [the mule]' but an officer of the law,” was competent and relevant on this issue, and the objection being to the statement as a whole, a part of which was good, there was no error in overruling the objection.

After the introduction in evidence of the mortgage from the plaintiff’s father to Womble, from whom the mule was purchased, with the indorsements thereon, without objection from the defendant,, a motion subsequently made in the course of the proceedings to exclude the same on the ground that its execution was not proven was properly overruled as coming too late.

The court erred in sustaining the motion of the plaintiff to exclude the statement by Claude King that he sent the mule back to the family of Nathan Napier, where it was when he sent for it. Claude King was sworn as a witness on beihalf of the plaintiff, and this evidence came out on the direct examination by the plaintiff and was not at the time objected to. Besides, it would have been competent as offered by the defendant on the question of measure of damages. If the property had been wrongfully taken in the first instance the return of the same before suit brought would go in the reduction of damages. The title to the property was in dispute, and there was evidence tending to show that the mule belonged to Nathan Napier, and the court erred in excluding evidence of statements made by plaintiff as to a right or wish to redeem the mule from defendant’s mortgage. The tendency of this evidence ivas to show a recognition by plaintiff of title in the defendant under his mortgage. There was evidence tending to show that the plaintiff voluntarily surrendered the mule to defendant’s agent, and it was conceded, as shown by plaintiff’s own testimony, that no demand ivas ever made on defendant for the mule before suit was brought. In connection with the evidence on the part of the defense that the mule was voluntarily delivered up to the defendant’s agent, it was competent for the defendant to show that there was no illegal user or misuser of the property and that the same was returned, and the court erred in sustaining objection to evidence offered along this line.

In Davis & Son v. Hurt, 114 Ala. 150, it was said by this court: “The gist of the action of trover is the conversion; the right of property may reside in the plaintiff entitling liim to pursue other remedies, but trover cannot be pursued without evidence of a conversion of the goods;” citing Glaze v. McMillan, 7 Porter 279; Conner & Johnson v. Allen & Reynolds, 33 Ala. 516; Bolling v. Kirby & Bro., 90 Ala. 215. And in the same opinion, further quoting from the case of Conner v. Allen, 33 Ala. 516, it was said: “Trover is one of the actions the boundaries of which are distinctly marked and carefully preserved by the Code. A conversion is now, as it has ever been, the gist of that action, and without proof of it the plaintiff cannot recover, whatever else he may prove or whatever may be his right .under another form of action.” And in that case the definition or description of a conversion given by Mr. G-reenleaf was adopted, viz.: “Conversion in the sense of the law of trover consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff under a, clami of title inconsistent with his own.” In that part of the oral charge of the court excepted to by the defendant, in which the court stated to the jury “that the only questions involved were, first, the ownership of the property, and, secondly, the value of the same,” the gist of the action, the conversion of the property, was wholly ignored. In this respect the court was in error.

In Strauss & Sons v. Schwab et al., 104 Ala. 672, in an opinion by McClellan, J., it was said: “Property taken and held under a void contract of sale cannot be said to be wrongfully taken, since it passed to the purchaser and is held by him through the voluntary act of the seller and acording to the intention of both parties. Nor can it be said in such case that there is an illegal assumption of ownership by the purchaser; that could only result when the assumption of ownership is against the consent and intention of the seller. 'And there could be no illegal user or misuser of the property while it is held under such void sale, since, though the sale be void, so long as it is not disaffirmed by the seller he is in the attitude of consenting to all uses to which an absolute owner might devote the chattels. And so it is with the possession. That, as well as the taking, the assumption of ownership and the uses to which the property is put whatever they may be, is, notwithstanding the contract of sale, void, by the permission of the seller, and cannot be tortious until that permission is withdrawn by an election properly evinced on ‘his part to set aside the sale and reclaim his property citing Bolling v. Knight & Bro., 90 Ala. 215, 222, s. c. 24 . Am. St. Rep. 789.

In the present case, as aboye stated, there was evidence tending to show a voluntary surrender of the property by the plaintiff: to the defendant, and, furthermore, without dispute the evidence showed that there ivas no demand for possession by the plaintiff before suit was brought. The several special charges requested in writing by the defendant which were predicated on this phase of the evidence, under the principles of law above stated, should have been given, and their refusal was error. Likewise the special charges predicated upon the proposition of no- demand before suit brought, if the jury believed from the evidence that there was no Avrongful tailing in the first instance, but that the property Avas voluntarily delivered to the defendant, should have been given.

Charges 5 and 11 Avere argumentative. The many written charges requested by the defendant in varying form were directed to questions above discussed and we deem it unnecesary to consider them in detail, as Avhat Ave have already said is sufficient for the purposes of another trial.

For the errors pointed out, the judgment of the circuit court is reversed and the cause remanded.