Bank of Ramer v. Derden

• Citation: 211 Ala. 666,101 So. 594
• Decision Date: 16 October 1924
• Docket Number: 3 Div. 680.
• Parties: BANK OF RAMER v. DERDEN ET AL.
• Court: Supreme Court of Alabama

101 So. 594

211 Ala. 666

BANK OF RAMER v. DERDEN ET AL.

3 Div. 680.

Supreme Court of Alabama

October 16, 1924

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action by J. W. Derden and another against the Bank of Ramer. Judgment for plaintiffs, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Eugene Ballard and Rushton, Crenshaw & Rushton, all of Montgomery for appellant.

Ball &amp Beckwith, of Montgomery, for appellees.

GARDNER J.

This action was commenced on August 2, 1921, by J. W. Derden against the Bank of Ramer, containing a single count in trover for the conversion of four bales of cotton. On October 9, 1923, the complaint was amended by adding thereto as plaintiff in the cause Mary T. Derden, and was further amended by adding counts in case for the destruction of the landlords' lien, and also a count for money had and received.

Plaintiffs jointly rented to one Chewning certain lands upon an agreed rental of $500 per year, and also made advances to said tenant. The indebtedness of Chewning to the plaintiffs was not questioned, nor was it in dispute that the tenant delivered to the Bank of Ramer four bales of cotton raised upon these premises, as payment on the mortgage indebtedness of said tenant to the bank. The warehouse receipts for these four bales of cotton were hypothecated by the bank with the Fourth National Bank of Montgomery as collateral security and were subsequently sold for $200.66, for which sum the defendant bank received due credit. As to the merits of the cause, the litigated issue submitted for the jury's determination rested upon the question as to whether or not the plaintiffs had waived their landlords' lien in favor of the bank. The jury determined this issue against the defendant, returning a verdict for the plaintiffs of $246.16. From the judgment following, the defendant has prosecuted this appeal.

It is insisted that as to the plaintiff Mary T. Derden the action in case, added by the amended counts in October, 1923, was barred by the statute of limitation of one year, and that the defendant's requested charge to this effect should have been given, and it is also insisted defendant was entitled to the affirmative charge as to the count in trover. The conclusion reached, however, renders a consideration of these questions unnecessary, as will presently appear, and they are therefore here pretermitted.

The insistence that the affirmative charge should have been given the...