Bolling v. Kirby

• Decision Date: 22 May 1890
• Citation: 90 Ala. 215,7 So. 914
• Parties: BOLLING v. KIRBY, ET AL.
• Court: Alabama Supreme Court

7 So. 914

90 Ala. 215

BOLLING v. KIRBY, ET AL.

Supreme Court of Alabama

May 22, 1890

Appeal from circuit court, Marshall county.

This was an action of trover brought by the appellees, Kirby &amp Bro., against the appellant, William Bolling, and sought to recover damages for the alleged conversion of a sewing-machine. The defendant pleaded the general issue, and issue was joined on this plea. Upon the trial, as shown by the bill of exceptions, J. F. Kirby, one of the plaintiffs testified in substance, as follows: That on the 7th day of September, 1885, he sold to Thomas Bishop and his wife a sewing-machine, taking therefor a certain instrument in writing, in words and figures as follows: "On Nov. 15 1885, after date, I promise to pay to the order of F. M Kirby & Bro. thirty dollars, with interest at the rate of ten per cent. per annum after maturity, until paid. The Esty sewing-machine, style 3, plate No. 14,895, for the use of which, to the maturity hereof, this note is given, is and shall remain the property, and under the control, of F. M Kirby & Bro., or assigns; and for default of payment, or if the said F. M. Kirby & Bro. deem the machine in unsafety, by removal or otherwise, it shall, on demand, be returned to F. M. Kirby & Bro., or assigns, in good order, and with pro rata pay for its use, which shall be three dollars per month. It is understood and agreed that F. M. Kirby & Bro. own this machine absolutely, and the title remains in them until the machine is paid for in full." This note or instrument was signed by said Thomas Bishop and wife, and attested by J. F. Kirby. The testimony for the plaintiffs then tended to show that the plaintiffs made an agreement with said Bishop that they would take young cattle in payment for the machine, valuing them at a certain price, and this agreement was indorsed on the instrument; that when the note fell due, or a short time thereafter, one of the plaintiffs went to the home of said Bishop, but Bishop was not at home, and the wife told him that her husband had the cattle with which to pay for the machine, and he thereupon told her to tell her husband to bring them to Guntersville, and he would leave the note with a certain man, who would deliver the note to him when he turned over enough cattle to amount to the amount due on the note; that he did leave the note with one Hooper, with instructions as above stated; that on the next day, or shortly thereafter, the said Bishop brought in the cattle, and upon showing them to the said Hooper, Hooper agreed to take them, and turned over the said note to Bishop; that immediately thereafter one Spooner and one Bains said, "Them's our cattle," and said that he had a judgment, execution, or mortgage against them, when the said Hooper said, "Let me see it." The defendant moved the court to exclude all this evidence as to what said Spooner and Bains said, and what Hooper said to them, but the court overruled the motion, and the defendant duly excepted. The plaintiffs then proved that one of them went to Bishop's house in the fall of 1886, to get the machine, and found that Mrs. Bishop was living on the defendant's place, in a house a short distance from the residence of the defendant, she being the daughter of the defendant, and that said Bishop, the husband, had gone to Arkansas; that he then went into the defendant's house and demanded the machine, when Mrs. Bishop came to her door and said that the machine had been paid for by her husband by giving cattle therefor; that the "defendant told him then and there that he could not take the machine off; that she had paid for it, and it was hers;" that he then tried to sell the machine to the defendant, but that he would not buy it; and that, after talking about it a while, the defendant agreed to come to Guntersville the next day, and see whether or not the machine had ever been paid for by his daughter's husband; and that he did come to Guntersville, and upon finding out that the machine had not been paid for he agreed to bring the machine into town, or send it in, and leave it at the office of John G. Winston, Jr., plaintiffs' attorney; but this he never did. There was proof, however, that defendant started to town with the machine, but for fear of breaking it had some one to take it off the wagon. It was further shown that when said Bishop turned over the cattle to said Hooper, and the said Spooner and Bains laid claim to the cattle, the said Bishop then made arrangements with Spooner and Bains, and turned over the cattle to them, and handed the note made by him to Kirby & Bro. back to said Hooper. The defendant testified as a witness in his own behalf, and testified to pretty much the same facts as introduced in evidence by the plaintiffs. Among other things, he testified that when he moved his daughter, Mrs. Bishop, to his place, she had a machine, and that this machine was put in her house, and was under her control, and that he never had anything to do with it after that; that she claimed that the machine had been paid for with cattle; and that when he went to Guntersville, and found out that the machine had not been paid for, he told Kirby if he was willing to risk it "he would tell the boys to bring it down on a cotton wagon," as they were then hauling cotton; and that he never saw the machine after this, and did not have anything else to do with it, and it was afterwards carried off by said Thomas Bishop. After giving the general charge, the court, at the request of the plaintiffs in writing, gave the following charges: (1) "If the jury believe the evidence, the note which has been offered in evidence vests the title to the machine in the plaintiffs." (2) "If the jury believe the evidence, the note has not been paid under the evidence in this case, and is sufficient to vest title to the property in the plaintiffs." (3) "If defendant had the machine in his possession, or under his control, and promised plaintiffs he would deliver it at Winston's office, and afterwards permitted some one else to take the machine out of his possession, or from under his control, whereby the machine was lost to plaintiffs, defendant is liable to plaintiffs for the value of the machine." (4) "If the defendant had the property in his possession, or under his control, and agreed to deliver it to plaintiffs, then he became the bailee of plaintiff, and it was his legal duty to keep the machine and deliver it to plaintiffs." (5) "If defendant by himself, or some of his hands in his employ, and by his direction, got the machine and placed it on his wagon, and started to town with it, then the machine was under his control, and if he afterwards permitted some one else to take it out of his control, whereby it was lost to plaintiffs, this was a conversion, and he would be liable to plaintiffs for the value of the property." (6) "If defendant told Kirby that he could not take the property from Mrs. Bishop, then this is a circumstance to which the jury may look to see whether defendant had control of the machine or not, and if he did have control of the machine, and refused to let Kirby have it, then this would be a conversion." (7) "If the jury believe from the evidence that the defendant had possession of the machine, or under his control, and defendant promised plaintiff, or a member of their firm, to deliver the machine to them at Winston's office at Guntersville, it was his legal duty to do it; and if in disregard of this duty he permitted some one else to take it away out of his control, whereby it was lost to plaintiffs, he is liable for its value, and the jury should so find." The defendant reserved an exception to each of these charges, as given, and asked in writing the following: (1) "If the jury believe the evidence, they will find the issue in favor of the defendant." (2) "If the jury find from the evidence that all the defendant did in reference to the machine was to move it, with his daughter, to a house on his place, and came to town to make inquiry as to what was the truth as to the payment of the note given by Bishop for the machine, and that he allowed his daughter, Mrs. Bishop, to remain on in a house on his place, and that the machine was afterwards carried away by Bishop, one of the makers of the note, this would not make him guilty of a conversion of the sewing-machine, and the verdict of the jury should be for the defendant." (3) "If the jury should find from the evidence that the plaintiff did in fact go to the defendant's house, and demanded the machine, and that the machine was there, this would not, of itself, constitute a conversion; and if this be all that defendant did in the way of converting the machine to his own use, the verdict of the jury should be for the defendant." (4) "If the jury find from the evidence that Bishop and his wife did in fact buy a machine from plaintiffs, and make the note in evidence; that Bishop went off, or left the country, and that the defendant did move Mrs. Bishop, his daughter, to a house on his plantation, and that the plaintiff Kirby went to Mrs. Bishop's house, and demanded the machine, and that she claimed that the note had been paid, and that Kirby was not entitled to the machine, and that Bolling, who was there, then told Kirby that he could not take the machine away, or that he, Bolling, would not allow him to take it away, and that Bolling did, on the next day, come to town and agree with Kirby that he would bring the machine to town, and deliver it to plaintiffs' attorney, Winston, and did not in fact deliver said machine to said Winston, but that the machine was allowed to remain at the house occupied by Mrs. Bishop, and that Bishop and his wife did actually afterwards remove the machine from the country,-this would not be a conversion by the defendant, and...