Kitchens v. Mann , 16 Ala. App. 599 ( 1918 )

The plaintiff, a warehouseman, claims of the defendant an account for storage of cotton. The cause was tried in the court below on the plea of the general issue, in short, etc. Under this plea the defendant sought to show a violation of section 7859 of the Code of 1907; that the plaintiff gave false weights on the receipts issued from his warehouse, and that defendant purchased cotton, evidenced by these receipts, and was thereby damaged to the extent of the shortage in weight; that the plaintiff pulled cotton out of the bales of cotton belonging to the defendant in amounts above the necessity for sampling, and for the conversion of two bales of cotton. All of the questions were contested, evidence pro and con introduced, and submitted to the jury, under a full and fair charge by the court. Where this is the case, the trial court will not be put in error for its action in overruling a motion for a new trial based upon the ground that the verdict of the jury was contrary to the evidence. Denson v. Stanley, 84 South. ___; Cobb v. Malone,92 Ala. 630, 9 So. 738; Cobb v. Hand, 12 Ala. App. 463,68 So. 541.

It is true that a warehouseman is liable, in a proper suit, for the delivery of goods to the wrong person. Hudmon Bros. v. Du Bose, 85 Ala. 446, 5 So. 162, 2 L.R.A. 475; Davis Son v. Hurt, 114 Ala. 146, 21 So. 468. But where the owner of the goods has been paid for them by the party to whom they were delivered, there can be no recovery from the warehouseman by the owner; or where, as in this case as applied to one of the bales of cotton, it is shown to the satisfaction of the jury that no demand was made for the cotton until after suit was brought, the defendant cannot through a plea of set-off or recoupment recover for that bale in this suit. These questions, under the evidence, were properly submitted to the jury.

A motion to exclude the plaintiff's testimony and render judgment in favor of the defendant is not the proper way to test the case as made by the plaintiff's evidence. Although the headnote in Jones v. State, 2 Ala. App. 240, 57 So. 62, and some other decisions of this court and of the Supreme Court may appear to be authority for the contention, a motion to exclude evidence cannot be made to take the place of a demurrer to the evidence. The authorities are to the effect that the trial court will not be reversed for the granting of such a motion where the evidence for the plaintiff fails to make out a case. Neither will the court be reversed for overruling such a motion. Abraham Bros. v. Means, 75 So. 187-189;¹ Mobile Light R. Co. v. Portiss, 195 Ala. 320, 70 So. 136; McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Wise v. Curl, 177 Ala. 324,58 So. 286; Athey v. T. C., I. R. R. Co., 191 Ala. 646,68 So. 154.

It is the duty of a warehouseman, on receiving cotton into his warehouse for storage, to issue a receipt for same, in accordance with the requirements of section 6131 of the Code of 1907, and failing to do this, and the cotton is in bad condition, he is liable to the holder of the receipt for any damages he has sustained by a failure to comply with the law. This question was within the issues of this case, and was properly submitted to the jury.

The assignments of error from 2 to 38, both inclusive, relate to the action of the court on questions of evidence. Many of these exceptions are plainly without merit, and others are without injury to the defendant. The difference between plaintiff's scales and other scales not shown to be correct was immaterial. Even if error, there was no injury to defendant in permitting a witness to testify that defendant and Smith, who was the party who shipped one of the bales of cotton claimed by defendant to have been converted, were doing business together during the season when the cotton of defendant was erroneously delivered to Smith. The questions, "Mr. Kitchens never did get any of you-all's money and keep it?" and "Did you ever know of Mr. Kitchen getting any of Mr. Mann's money?" called for evidence not relevant to the issues in the case. The question of how much loss defendant sustained on 138 bales of cotton which he had received on tickets and purchased in plaintiff's warehouse was not relevant to the issue. The question was not what he lost, but what he lost by short weights or fraudulent receipts given by plaintiff.

The refusal of the court to permit the defendant's counsel to ask the witness Kitchen, "Well, now, did you or did you not demand possession of this cotton before this suit was filed?" was evidently because the question called for a repetition of what had already been testified to by the witness Kitchens, he having just testified, "I demanded possession of this cotton before he ever sued me." What Kitchen did with reference to reweighing other cotton in plaintiff's warehouse was immaterial.

Assignments of error 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34 are clearly without merit. This evidence was competent as tending to rebut the charge of fraud in the weighing of cotton in plaintiff's warehouse, including cotton purchased by the defendant; it having been testified by a witness for defendant that plaintiff's agent had induced the bringing of cotton to the warehouse by a promise of increase in weights over other warehouses. The courts will not permit an attack upon the integrity of a man's business and then prevent him from rebutting it.

It was immaterial how London had listed out bale 1687. It was not London's cotton, and, whether he listed it or not, plaintiff had no right to deliver defendant's cotton to London, or to anybody else except upon the order of defendant.

The correctness of scales is to be proven by standard of weight, and not by the opinion of cotton buyers, however expert they may be in the buying and handling of bales of cotton.

Assignments 17, 18, and 19 are clearly without merit. As to 17, the witness could not be permitted to testify to something about which he had no knowledge; as to 18, what was the understanding of the witness was not competent; and as to 19, it was a pertinent inquiry as to whether the defendant shipped the cotton he was claiming as an offset.

The following charge; "The court charges the jury that, unless you are reasonably satisfied from the evidence that defendant did not demand the bale of cotton No. 3110 until the month of January, 1915, and that the present suit was instituted by the plaintiff on December 28, 1914, you would not be authorized to give a verdict against the plaintiff in favor of defendant for said bale of cotton" — given at the request of the plaintiff, while involved and misleading, is favorable to the defendant, and he cannot complain.

Charge No. 2 states a correct proposition of law as applicable to the facts in this case and was not error.

Charge No. 1 as requested by the defendant was the general affirmative charge, and, as has been shown supra, was properly refused.

Charge No. 2 as requested by defendant does not state the rule of damages for conversion, as applicable to the facts in this case, and was therefore properly refused.

Charge No. 6, as requested by the defendant, does not correctly state the rule for ascertaining the damages for the conversion of the cotton, based upon the facts of this case.

There is no error in the record, and the judgment is affirmed.

Affirmed.

¹ Ante, p. 42.