Calhoun County v. Art Metal Construction Co. , 152 Ala. 607 ( 1907 )

ANDERSON, J.

The evidence in the case failed co show a divestiture of the plaintiff’s title to the chattels invoiced. They were shipped by the plaintiff and consigned to its own order, and were received and held by Judge Crook as its agent, and were so held by him when the contractors threw up the job of building the court, house. Therefore the county could not have acquired a title under the tenth clause of the contract it had with the contractors. Nor was there any evidence that the county got them under a contract of purchase, express or implied. While put in the office by plaintiff’s agent with the consent of Judg’e Crook, there was no evidence that he purchased them for the county, or that he had any authority to do so. There was also proof of a demand and refusal.

The appellant contends that the plaintiff should not have recovered in this action of tort, because it had previously brought assumpsit for the price of the articles, and, notwithstanding a failure to recover, its action in bringing the suit was an election of remedies, and worked an estoppel against its setting up a title to the property and a recovery in tort. We have recently reviewed this question, wherein the line of authorities relied upon by appellant’s counsel were differentiated from cases like the one there decided and the one at bar, and from which we quote: “In its technical and more restricted sense, election of remedies is the adoption of one of two or more existing remedies, with the effect of precluding a resort to the others. The remedies here intended are known as exclusive or alternative remedies. —7 Am. & Eng. Ency. PL & Pr. 361. To mak a case for the application of the elective principle, the party must have actually at command two inconsistent remedies.-— Morris v. Rexford, 18 N. Y. 552; McNutt v. Hilkins, 80 Hun (N. Y.) 235, 29 N. Y. Supp. 1047; Kinney v. Kiernan, 49 N. Y. 164. There are cases wherein the owner may waive an action for the conversion of his property and bring assumpsit, and by so doing he might be precluded from subsequently maintaining trover. In order, however, for it to have that effect, both remedies must have been open to him when he made the election. In our state the owner of personal property is put to his action for a conversion, and cannot recover in as-sumpsit for money had and received, unless there has been a sale and the reception of money, or of things as money, as the price or value of plaintiff’s property.— Smith v. Jernigan, 83 Ala. 256, 8 South. 515; Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. 318; Crow v. Boyd, 17 Ala. 51; Pike v. Bright, 29 Ala. 332. These views. are not in conflict with the rule laid down in the case of Hickman v. Richburg, 122 Ala. 638, 26 South. 136, and cases there cited. There the plaintiff had the right to confirm the sale and recover the price, or to disaffirm the sale and recover the property; but in the case at bar the plaintiff could not maintain assumpsit, and could not be precluded from an action for conversion, upon the doctrine of election, by bringing an action that could not he maintained.” — Southern Ry. Co. v. City of Attalla, 147 Ala. 695, 41 South. 664.

It is suggested by counsel that the plaintiff failed to show that the chattels involved were not so annexed to the freehold as to make them a part of the realty, and, unless personal property, the defendant was entitled to the general charge. Of course one cannot recover in detinue except for the detention of personal property; but the articles were such, and the proof does not show that they Avere so put in the office as to change their character. If they were so annexed as to change them from personal to real property, Ave think it Avas incumbent upon the defendant to show it, and not upon the plaintiff to negative the fact.

The trial court did not err in refusing charges 5, 6 and 8, requested by the defendant. The jury was not bound to assess the value of the goode as secondhand, but had the right to assess the value at any time betAveen the tort and trial. — Wortham v. Gurley, 75 Ala. 362, and cases there cited. The goods were not secondhand at the time of the taking, but only became such after being used by the defendant.

The trial court did not commit reversible error in refusing charge 10, requested by the defendant; for, if its refusal was error, it was error without injury. Conceding that the plaintiff did agree to sell the fixtures to the contractors for $1,500, and that it would be a circumstance to be considered by the jury in weighing the testimony of its witness Reamer as to value, it could not tend to contradict him, as he fixed the value of the articles at less than $1,500, and the jury awarded less than was justified under any phase of the evidence.

Charge B given at the request of the plaintiff, should have been refused. It misstates the evidence of Reamer in several particulars, but the error in giving same was cured by the verdict. The jury assessed the value at less than was authorized, either by the charge or the evidence, and could not have been influenced by the charge to the detriment of the defendant. In fixing the value of those particular articles, as to which there was a discrepancy between the testimony and the charge, the jury not only ignored the charge, but as to several of them assessed a lower value than that put by the witness Reamer.

The judgment of the city court is affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.