Mutual Warehouse Co. v. Hamilton , 171 Ala. 82 ( 1911 )

ANDERSON, J.

The plaintiff had the legal title to the bale of cotton, under his mortgage, if grown by the mortgagor, which the weight of evidence tended to establish. It is true that Mrs. Nickles, the landlord, had a lien on the cotton paramount to the mortgage, and if she was sued by the mortgagee she could defeat a recovery in trover by showing a rightful possesion, actual or constructive, of the cotton, under her said lien; and so could the defendant defeat a recovery by connecting itself with Mrs: Nickles.

It was a question for the jury, however, as to whether or not Mrs. Nickles ever had the passession of the bale of cotton, or whether or not it was turned over to Weil under authority from her, even if it be conceded that she had constructive possession. Mrs. Nickles served notice on the defendant to hold the cotton for her; but the evidence does not show that the defendant warehouse company ever held it for her, or did anything to clothe her with the possession. Nor does it conclusively appear that the bale of cotton was delivered to Weil under the authority of Mrs. Nickles. The witness McGuire says that Mrs. Nickles instructed him to get the cotton and sell it, and send her the proceeds; “that the cotton was turned over to Abraham,” who sold it, and sent the proceeds to Mrs. Nickles; but he does not say that the defendant turned it over to Abraham or Weil under authority from him as the agent of the landlord. On the other hand, the defendant’s deposition shows that it did not know whether the person to whom the delivery was made was acting as the agent of any one or that they were claiming under the landlord.

Nor would the fact that Abraham sent the proceeds to the landlord defeat the plaintiff’s right to recover, unless she.had previously acquired the possession of the property, actual or constructive, and it was turned over to some one under authority from her.—Keith v. Ham, 89 Ala. 590, 7 South, 234; Belser v. Youngblood, 103 Ala. 545, 15 South. 863. These questions being ones within the province of the jury, we cannot say that the verdict was contrary to the law or the evidence, and thus put the trial court in error for refusing a new trial.

The judgment of the city court is affirmed.

Affirmed.

Dowdell, O. J., and Sayre and Somerville, JJ., concur.