Gray v. Haynes & Bro.

MoOLELLAN, J.

While not officially reported, the conclusions reached on former appeal of this case may be found in 41 South. 615.

The action is trover, for the conversion of a number of bales of cotton. The plaintiffs rest their rights in the premises upon two mortgages executed by M. W. Johnson to them. These mortgages, it seems to be conceded, covered agricultural products, raised as described therein, grown “in Calhoun county, Ala.,” and not elsewhere. It is recited in the bill of exceptions-that all of the evidence, and all that the evidence tended to show, is set out therein. There is nothing in the bill tending in any sense to show that the cotton in question was grown in Calhoun county, or, for that matter, where it was grown. As appears from the opinion on former appeal, there was testimony tending to. establish that essential fact, in order to show that title in, and right to the possession of, the cotton necessary to plaintiffs’ maintenance of the action. But, though the fact was as indicated, we cannot ignore the stated' affirmative recital of the bill of exceptions, which excludes any inference or assumption that the evidence' tended to establish the fact that the cotton was grown in Calhoun county. In the absence of evidence in support of the stated fact, the judgment cannot stand, since without some tendency in the proof of that fact the-plaintiffs had no such title and right to the cotton as would, under familiar law, support an action by them for the alleged conversion.

There is no merit in the errors assigned as upon testimony admitted in respect of the Frye mortgage, given by Johnson upon the animal and encumbering it when plaintiffs accepted it and credited Johnson’s indebtedness to them with the agreed value, namely, $100. In the absence of anything to the contrary, and that was the state of the case in this instance, the sale of a chattel carries the implication of a warranty of title thereto. — Williamson v. Sammons, 34 Ala. 693; Ricks v. Dillahunty, 8 Port. (Ala.) 134. The breach of that warranty was here present, and the practical effect of the warrantee’s act in. procuring the assignment for value of the Frye mortgage, the existence of which wrought the breach, was to toll the credit to the extent of the amount due on the outstanding mortgage. Furthermore, the testimony shows that Johnson insisted on plaintiffs taking up the Frye mortgage. Certainly, if Johnson, in good faith that does not appear to be doubted, was willing to save the loss to the plaintiffs from his breach of warranty, the alleged tort-feasor cannot complain.

The judgment is reversed on the sole ground indicated before. The cause is remanded, as right demands, in this instance, should be done.

Reversed and remanded.

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