Pippin v. Farmers' Warehouse Co. , 167 Ala. 162 ( 1910 )

MAYFIELD, J.

The action is by Pippin against the Farmers’ Warehouse Company, a partnereship, and E. R. Phillips for damages for the conversion by them of a bale of cotton in December, 1905. The case was tried on an agreed statement of facts by the court- without a jury. It is founded and prosecuted for the separate and district, but concurring and coexisting, wrongful acts of the defendants. The burden of the defendants’ defense is that the evidence shows that they were separate tort-feasors, and therefore there is a variance between the allegations and proof, and plaintiff was not, on that account, entitled to recover. If the cotton was converted by the wrongful act of One (and the agreed statement of facts showed this) co-operating with the other defendant, who had notice of the plaintiff’s rights, a joint action for the wrongful act might be maintained against both of them. — Powell v. Thompson, 80 Ala. 51.

The agreed .statement of facts shows that before defendant Phillips procured from the defendant warehouse company a receipt for the bale of cotton, storing it with them, the plaintiff had a mortgage on the same, which mortgage was duly recorded, and had been, for several months before that time, in the probate court of Dale county, and everything had been done which was necessary for a proper recording of the same; and the defendant warehouse company had, as is admitted, constructive notice given by law of the mortgage on said cotton to the plaintiff at the time it did the acts complained of, in aid of its codefendant, Phillips, in the shipment and conversion of said cotton'. This was notice to the defendant warehouse company of the existence of said mortgage, and as binding on them as actual notice would have been.— Hudmon v. DuBose, 85 Ala. 448, 5 South. 162, 2 L. R. A. 475, and authorities there cited. The defendants were, under the evidence, jointly and severally liable for the conversion of the cotton, and judgment should have been rendered for the plaintiff.

The opinion in this case, foregoing, was prepared by Justice Haralson. It is now adopted and announced as the opinion of the court.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.’