Beall v. James Folmar Sons & Co.

• Decision Date: 30 May 1899
• Citation: 122 Ala. 414,26 So. 1
• Court: Alabama Supreme Court
• Parties: BEALL v. JAMES FOLMAR SONS & CO.

26 So. 1

122 Ala. 414

BEALL v. JAMES FOLMAR SONS & CO.

Supreme Court of Alabama

May 30, 1899

Appeal from circuit court, Crenshaw county; John R. Tyson, Judge.

Trover by J. W. Beall against James Folmar Sons & Co. From a judgment entered on a verdict for defendants, plaintiff appeals. Affirmed.

This was an action of trover, brought by the appellant, J. W Beall, against James Folmar Sons & Co., to recover damages for the alleged conversion of 20 bales of cotton. The defendants pleaded the general issue and the following special pleas: "Second. That the said property for the conversion of which this suit was brought was never the property of the plaintiff. Third. That in the said property for the conversion of which this suit was commenced the defendants hath a special property superior to the right therein of the plaintiff." To the second special plea the plaintiff demurred upon the grounds (1) that it is no answer to the complaint; (2) said plea fails to deny that the defendants are guilty of the acts of conversion complained of. To the third plea the plaintiff demurred upon the grounds (1) that it was no answer to the complaint; (2) that the said plea fails to set out the facts to show wherein the defendants' special property in the cotton alleged to have been converted was superior to the right of plaintiff therein. Each of these demurrers was overruled, and the plaintiff duly excepted. The plaintiff, after proving the execution thereof, introduced in evidence a mortgage executed on February 17, 1894, by M. N. Hassey to the plaintiff, in which mortgage the mortgagor, to secure his indebtedness to the plaintiff, conveyed the entire crop raised by him during the year 1894. This mortgage was recorded on February 17 1894. The evidence for the plaintiff then tended to show that the cotton alleged to have been converted by the defendants was raised by said Hassey during the year 1894, and was covered by said mortgage; that the defendants purchased said cotton from said Hassey in November, 1894, M. N. Hassey introduced as a witness by the plaintiff, testified that he rented the lands in the year 1894 from one W. V. Bell; that he sold several bales of the cotton raised by him on said rented lands to the defendants; that when he brought the cotton to market he carried the samples to the plaintiff, and told him that the defendants were paying more for cotton than any one else, and that thereupon the plaintiff told him to sell them the said cotton; that out of the proceeds of the cotton sold to the defendants, he paid W. V. Bell, as landlord, between $200 and $300 on the rent of the land. The plaintiff objected to, and moved to exclude, the evidence of this witness as to his having paid $200 or $300 on the rent to Bell. The court overruled the objection and motion, and the plaintiff only excepted. The said witness Hassey further testified that the cotton was sold to the defendants by the permission of W. V. Bell. This witness further testified that he did not execute the mortgage to the plaintiff; that upon the note which he had given to the plaintiff in 1893 maturing, he asked the plaintiff to allow him to renew it and that, after the instrument introduced in evidence was prepared by the plaintiff, the plaintiff informed him that it was exactly like the former note, and that he (Hassey) signed said papers believing that it was a waive note, and without any knowledge that it was a mortgage; and that he did not intend to give, and did not know that he was executing, a mortgage to the plaintiff. The plaintiff's attorney asked the witness Hassey the following question: "In the fall of 1894, when the sheriff, Mr. L. S. Knight, levied on the bale of cotton which was in your possession at the time, did you not tell Knight that the plaintiff had a mortgage on the cotton, or words to that effect?" The witness answered that he did not make such statement. The plaintiff, as a witness in his own behalf, testified that he did not tell the witness Hassey, at the time of the execution of the mortgage that it was a note, but that the mortgage was executed to secure the indebtedness which Hassey owed the plaintiff. The plaintiff introduced as a witness in his behalf L. S. Knight the sheriff of Crenshaw county, and he was asked the following question: "State whether or not, in the fall of 1894, you, as sheriff, levied on some cotton raised by M. N. Hassey, and that when you did so you and Mr. Hassey went to J. W. Beall, the plaintiff, at the instance of Mr. Hassey, and whether Hassey at the time stated that plaintiff held a mortgage on the cotton, and had the plaintiff show you the mortgage in controversy in this case, and thereby cause you to release the cotton from the levy." The defendants objected to this...