Birmingham Mineral R. Co. v. Tennessee Coal, Iron & R. Co.

• Decision Date: 12 June 1900
• Citation: 28 So. 679,127 Ala. 137
• Court: Alabama Supreme Court
• Parties: BIRMINGHAM MINERAL R. CO. v. TENNESSEE COAL, IRON & R. CO. ET AL.

28 So. 679

127 Ala. 137

BIRMINGHAM MINERAL R. CO. v. TENNESSEE COAL, IRON & R. CO. ET AL.

Supreme Court of Alabama

June 12, 1900

Appeal from circuit court, Blount county; James A. Bilbro, Judge.

Trover by the Tennessee Coal, Iron & Railroad Company and the Sloss Iron & Steel Company against the Birmingham Mineral Railroad Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

This was an action of trover, brought by the appellees, the Tennessee Coal, Iron & Railroad Company and the Sloss Iron &amp Steel Company, against the Birmingham Mineral Railroad Company, to recover damages for the alleged wrongful conversion of 1,000 ties, which were cut from the land owned by the plaintiffs. The cause was tried upon issue joined upon the plea of the general issue. On the trial it was shown that the plaintiffs had a legal title to land from which the ties alleged to have been converted by the defendant were cut. The evidence introduced for the plaintiffs tended to show that several different persons had cut from the lands of the plaintiffs, without the plaintiffs' consent, the trees from which cross-ties were made; that the cutting of said trees was done for certain contractors; and that these contractors sold the said trees to the defendant. There was evidence introduced in behalf of the defendant tending to show that, at the time the trees from which the cross-ties were made were cut from the lands of the plaintiffs, one J W. Bass was the agent of the plaintiffs having the management and control of their lands, and that for the ties which were taken from the plaintiffs' lands Bass, as agent of the plaintiffs, had been paid, and that at the time of the purchase of said ties by the defendant it was not known by the defendant that they were cut from the plaintiffs' lands, and that if any of them were not paid for this fact was unknown to the defendant at the time of purchase. It was shown that at the time of the trial J. W. Bass was dead. The other tendencies of the evidence, so far as is necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. One J. M. Donehoo, a witness for the defendant, testified that he was a merchant in Oneonta, and during the fall of 1895-96 he was engaged in the tie business; that is, in having ties cut and in selling them. Among the other things, this witness testified that he saw a receipt in favor of Pink Algood for money paid for cross-ties during the time referred to, and that this receipt was in the handwriting of J. W. Bass, and was signed by said Bass as agent for the plaintiffs. During the examination of one J. D. Algood, a witness for the defendant, he testified that in the fall and winter of 1895, which was the time fixed in the complaint as to when the ties were converted by the defendant, he (the witness) cut several hundred ties from the plaintiffs' lands; that most of these ties were cut for the Champion Mine. In answer to a question propounded him by the defendant's counsel, the witness said that he was present when Bass gave to his brother, Pink Algood, a receipt for money paid to Bass for ties cut from the plaintiffs' lands, which was referred to by the witness Donehoo; that said receipt was given for ties cut for the Champion Mine. The plaintiffs objected to this question, the court sustained the objection, and the defendant duly excepted. During the examination of Pink Algood as a witness for the defendant, he testified that during the fall of 1895-96 he cut some cross-ties from the plaintiffs' lands; that he, the said witness, had the receipt to which John Donehoo testified, but had lost said receipt; that said receipt was given for money paid for cross-ties. The plaintiffs objected to this witness stating what the money was paid for, upon the ground that said witness was incompetent to testify as to the transaction with Bass as plaintiffs' agent, since said Bass was dead at the time the witness was testifying. The court sustained this objection, and the defendant duly excepted. Evidence as to the market value of the ties was introduced, the witness testifying that the value of a tie was 5 or 6 cents in the trees before they were cut, and that after the trees were cut, and the ties hewn out, they were worth from 12 1/2 to 25 cents per tie.

The defendant separately excepted to the following portions of the court's oral charge to the jury: "(1) If at the time defendant received the letter from plaintiffs' agent, notifying them of their claim to the ties, there were any ties not paid for, and the defendant was put upon notice by plaintiffs that plaintiffs were claiming them as their property, and plaintiffs also gave defendant reasonable notice as to where the ties came from, or put it in possession of such facts as they might ascertain whether the ties came from plaintiffs' lands, and the defendant ignoring the notice, took possession of them anyhow, then the defendant would be responsible for the value of the ties when it took them and removed them, and as to that lot of ties I charge you it would make no difference as to the value that they were cut by third parties on the lands of plaintiffs. In that case the plaintiffs would be entitled to recover the value of all the ties the defendant appropriate to its use after it was notified it was the property of the plaintiffs if you find that the ties belonged to the plaintiffs. (2) If you find from the evidence that Mr. Bass was put in possession of the lands by the plaintiffs, and if you also find that at the time he was put in possession of the lands it was to take control of them, and to keep off trespassers, and to fix the lines, if you find that, and if you also find he rented a part of the lands at one time, and turned the notes over to the plaintiffs, if that is all you find of his connection with the plaintiffs in this case, and the property, that did not authorize him to tell persons they might cut timber from the lands. (3) Gentlemen, the payment to Mr. Bass would not be a payment in the light of his authority, without notice to the plaintiffs that he was collecting for them and their ratification of his act."

At the request of the plaintiffs, the court gave to the jury the following written charges: "(a) If the jury believe the evidence in this case, they will find a verdict for the plaintiffs. (b) It is the law in this case that if the railroad company purchased these ties, and that they were taken from the land of plaintiffs by willful trespassers, the measure of damages is the value of the cross-ties at the time of the purchase by the railroad company." To the giving of each of these charges the defendant separately excepted and the defendant also separately excepted to the court's refusal to give the following charges requested by it: "(1) If the jury find from the evidence in this case that Bass was employed by the plaintiffs to transact all of the business in relation to the lands mentioned in the agreement in evidence, then he was their general agent. (2) If the jury find from the evidence that the plaintiffs put Bass in actual possession of the lands near Oneonta, and held him out to the world as their general agent in and about said lands, then any payment made to him for timber or ties cut from said lands was lawful, and the plaintiffs cannot recover in this action anything for all such ties as the jury find from the evidence was so paid for to said agent. (3) The court charges the jury that if they find from all the evidence in this cause that Bass was the general agent of the plaintiffs, and by...