Allen v. Jacob Dold Packing Co.

• Decision Date: 14 October 1920
• Docket Number: 6 Div. 45
• Citation: 204 Ala. 652,86 So. 525
• Parties: ALLEN v. JACOB DOLD PACKING CO.
• Court: Alabama Supreme Court

86 So. 525

204 Ala. 652

ALLEN v. JACOB DOLD PACKING CO.

6 Div. 45

Supreme Court of Alabama

October 14, 1920

Rehearing Denied Nov. 18, 1920

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by E.P. Allen against the Jacob Dold Packing Company, begun by attachment. From a judgment for the defendant on certain counts plaintiff appeals, and from judgment for plaintiff as to certain counts defendant appeals; each party filing a cross-appeal. Transferred from court of appeals under section 6, Acts 1911, p. 450. Affirmed as to both direct and cross appeals.

Although a bailee would not be liable in trover because the bailed property was stolen, yet where the bailee's agents negligently and carelessly used bailed property in filling orders for their principal, the bailee is liable for the conversion.

The first count claims for breach of contract to lease plaintiff a storehouse from June 10, 1918, to July 1, 1924, at and for the sum of $175 per month, and that by reason of the breach of the agreement and the refusal to enter into the lease plaintiff was compelled to lease another store at and for the sum of $225 per month.

Counts 4 and 6 set up an agreement for sale of business and lease of storehouse by the Jacob Dold Packing Company, to E.P. Allen and its breach and claim damages as in count 1.

Count 5 is as follows:

Plaintiff claims of the defendant sum of $300 damages for the conversion by it on, to wit, 18th day of June, 1918, of the following chattels: 47 sides of meat, D.S. clear of bellies with packing house No. 104 on them, the property of the plaintiff. It appears that the Jacob Dold Packing Company had certain fixtures having reference to a packer's business located at a certain storehouse on which they held a lease to July 1, 1924, and that they submitted a proposition in writing to E.P. Allen to sell the fixtures and the lease for a sum certain, which proposition Allen accepted. One Stotler, alleged to be the agent of the Jacob Dold Packing Company, conducted the negotiations for the packing company and signed the various propositions and letters. It was denied by the defendant that Stotler had any such authority and they raised this question by filing a plea of non est factum, and there was evidence tending to support the plea.

The fifth count was supported by evidence that the plaintiff Allen, stored in the defendant's warehouse a carload of meat such as is described in the complaint, and that the defendant appropriated and sold 47 sides of the same.

The following is the letter of June 10, 1918:

June 10, 1918.

E.P. Allen & Co., Birmingham, Ala.--Gentlemen: With reference to our conversation today, we offer to sell you the following equipment located in our branch at 2315 First Ave Birmingham, Ala., for the cash consideration of six thousand dollars, ($6,000.00) with the understanding that you will enter into a lease with us for the above location on the terms and for the period of time for which our lease runs, the final expiration date of said lease being July 1, 1924. Upon receipt of your acceptance we will have the proper papers drawn up for the signature of the contracting parties. Equipment as follows: Pork, beef and D.S. coolers, ammonia compressor with motor, extra motor for compressor, construction, office smoked meat room, electric power wiring, electric fixtures, tracks including track scales, plumbing including water heater, iron runways, all scales excepting springless scales, all trucks excepting metal pork loin trucks, all short and long hook trolleys (about 225 longs, 250 shorts), one typewriter, three desks, one Burroughs adding machine with stand, two safes, all tables, chairs, stools, ink wells, wire baskets, cuspidors, one 8 column comptometer and one stove.

There may be a few small items which we will also leave rather than ship them back to Wichita, but the above list includes the principal values.

Awaiting your acceptance of this proposition.

Yours truly,

Jacob Dold Packing Company--Stotler.

The following are the telegrams from the packing company to its agent, as referred to in the opinion:

Birmingham, Ala., June 6, 1918.

Jacob Dold Packing Co., Wichita, Kas. Shipping two branch typewriters to Buffalo tonight. Have offer $6,000 cash for inside equipment, excluding Toledo scales, three pork loin trucks. These figures about 70 per cent. against original cost. Buyer to assume lease. Wants reply by Saturday if possible, or first of week sure. What say?

[Signed] J.E. Stotler.

Wichita, Kas., June 7, 1918.

J.E. Stotler, Care Jacob Dold Packing Co., Birmingham, Ala. Buffalo instructs accept inside equipment excluding items mentioned you wire. $6,000.00 cash equaling approximately 70 per cent. of first cost. Buyer to assume lease expect you will try to do better if possible. Try to get White accept the purchaser for the payment rentals until expiration lease. Wire what do.

[Signed] Jacob Dold Packing Co.

Birmingham, Ala., June 7, 1918.

Jacob Dold Packing Co., Wichita, Kas. White will give answer Monday. Offered no objection, but wants investigate before releasing us. [ [Signed] Stotler.

Wichita, Kas., June 7, 1918.

J.E. Stotler, Birmingham, Ala. Message received. Have transmitted Buffalo. Expect answer tomorrow morning. Will wire you then their decision. To us this looks like a good offer, and have recommended acceptance. Will White accept purchaser for payment rentals or look to us for payment for expiration our lease? Answer.

[Signed] Jacob Dold Packing Co.

6-7-18.

W.C. Glenn, Jacob Dold Packing Co., Wichita, Kas. Mail me Birmingham lease. Will be Memphis tomorrow then back here.

[Signed] J.E. Stotler.

Wichita, Kas., June 12, 1918. 5:46 PM.

J.E. Stotler, Ja. Dold Pkg. Co., Birmingham, Ala. White has sent us new lease for five years from July 1st, 1919, to June 30th, 1924. Wants us to sign this lease when our lease expires June 30th, 1919. Looks to us like White should make lease with Allen for additional five years. Don't want to be held responsible for Allen's rent after expiration of our present lease. White has inserted clause that would make us responsible until June, 1924. We want to get through with this at expiration present lease believe you should so advise White and have White make lease with Allen. We will agree to be responsible for rent on present lease but not additional five years. Wire quick if can make this arrangement. If not will take matter up with Buffalo but am sure they will now agree to White's holding us responsible for five years additional.

[Signed] W.F. Dold.

Buffalo, N.Y., June 13, 1918.

J. Dold Pkg. Co., Wichita, Kas. Assume no responsibility Birmingham case after expiration present lease looks to us landlord bluffing.

[Signed] J. Dold Pkg. Co.

Wichita, Kas., June 14, 1918.

J.E. Stotler, Care Dold Pkg. Co., Birmingham, Ala. Answering message Buffalo advises under no circumstances assume any responsibility Birmingham lease after expiration present lease. If White not willing make arrangement with Allen call deal off. What rent per month is White asking Allen for the additional five years providing we don't exercise our option. Wire answer. [ Signed] F.W. Dold.

Wichita, Kans., June 6, 1918.

J.E. Stotler, Care J. Dold Pkg. Co., Birmingham, Ala. Answering relative final disposition lease and equipment Buffalo wants us to submit any offers that might received therefore wire us any proposition that you might be able to obtain we in turn will put up to Buffalo by wire they reserving right make final decision. [ Signed] W.G. Glenn.

Birmingham, Ala.

W.G. Glenn, Care Dold Pkg. Co., Wichita, Kans. Have closed deal with Allen six thousand on wire authority from Cuff you wire Frank S. White, Jr., Jefferson County Bank Building, Birmingham, early so lease may be closed up as follows: We relinquish our right of option at expiration present lease in favor of a new lease you are making with E.P. Allen & Co. to whom we have sold our equipment in Birmingham sign it Dold.

[Signed] J.E. Stotler.

Wichita, Kans. 8:25 AM.

Frank S. White, Jr. Jefferson County Bank Building, Birmingham, Ala. We relinquish our right of option at expiration of present lease in favor of a new lease you are making with E.P. Allen & Co., to whom we have sold our equipment in Birmingham.

[Signed] Jacob Dold Packing Co.

Birmingham, Ala. June 13, 1918.

Fred Dold, Wichita, Ks. White will not make lease direct with Allen at our rate. Allen wants our option, if buys equipment. We have two weeks yet to assert option under our contract with White. If not asserted White will look for another tenant. We have landlord lien against equipment in subletting to Allen whether expressed or not with this as security recommend the signing of papers sent you by White and direct yesterday as sale of equipment, same as guarantee fifty percent full rental full lease

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