Boozer v. Jones , 169 Ala. 481 ( 1910 )

McCLELLAN, J.

A bailee for hire cannot make a valid sale of the bailment, “even to a bona fide purchaser who may be in ignorance of the vendor’s want of title.” — Medlin v. Wilkerson, 81 Ala. 147, 1 South. 37; Singer Manuf'g Co. v. Belgart, 84 Ala. 519, 4 South. 400; Milner & Kettig Co. v. De Loach Manuf’g Co., 139 Ala. 645, 36 South. 765, 101 Am. St. Rep. 63; Miller Piano Co. v. Parker, 155 Pa. 208, 26 Atl. 303, 35 Am. St. Rep. 873, 874. McKinley was shown, without dispute, to have been a mere bailee for hire (with no right or authority to sell them) of the four mules sought to be recovered in this action. The ownership of the title to the property was proven, without conflict, to have been in the plaintiff (appellee), the bailor. Obviously the plaintiff was entitled to prevail. The court so affirmatively instructed the jury as to three of the mules. There ivas no error in that action.

As to the other mule, attempted to be sold by the defendant to Haralson, Boozer (defendant) testified that he “told [plaintiff’s general agent] that he would be responsible for the mule Haralson had and the other mules in case Jones recovered them by suit; that he had an arrangement with Haralson by which Haralson was to hold the mule for witness, in case witness had to account for it.” Under this arrangement, evidently the bay mare mule, referred to in charges I and J, requested by and refused to defendant, was subject to the control of the defendant, though held so conditionally by Haralson. As appears, this animal was, in effect, staked out to answer the command of appellant whenever he saw fit to retake it for delivery to appellee. Detinue may be maintained against one in actual possession of the chattel, or against one who has such controlling power over the chattel as that he could, without breach of legal duty or obligation, surrender the possession if he elected to do so. — Henderson v. Felts, 58 Ala. 590; Nelson v. Howison, 122 Ala. 573, 579, 25 South. 211. These charges were, hence, well refused.

Charges D, E, F, G, and H, requested by and refused to defendant, predicating a finding for defendant on a disbelief of the evidence, were properly refused, for the reason stated in the following decisions: Koch v. State, 115 Ala. 99, 22 South. 471; Hampton v. State, 133 Ala. 189, 32 South. 230; Sanford v. State, 143 Ala. 85, 39 South. 370; McCleskey & Whitman v. Howell Cotton Co., 147 Ala. 573, 581, 42 South. 67; McConnell v. Adair, 147 Ala. 599, 41 South. 419. The last cited decision reviews others delivered, bearing on the inquiry.

The two remaining errors assigned relate to rulings on the admission of evidence. The statements attributed. to McKinley, descriptive of the character of his possession of the mules, were admissible under the principle that such statements were explanatory of his possession, and Avere of the res gestae of that possession.— Mobile Savings Bank v. McDonnell, 89 Ala. 434, 448, 8 South. 137, 9 L. R. A. 645, 18 Am. St. Rep. 137; Perry v. Graham, 18 Ala. 822; Humes v. O’Bryan & Washington, 74 Ala. 64, 79-80.

There is no assignment of error raising any question on the measure of recovery for hire or use during detention ; hence the argument on that score is Avithout basis for consideration here. There is no merit in the errors assigned.

The judgment is affirmed.

Affirmed.

Dowdell, O. J., and Simpson and Mayfield, JJ., concur.