Britt v. Pitts

• Decision Date: 16 June 1896
• Citation: 20 So. 484,111 Ala. 401
• Parties: BRITT v. PITTS.
• Court: Alabama Supreme Court

20 So. 484

111 Ala. 401

BRITT v. PITTS.

Supreme Court of Alabama

June 16, 1896

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Action on the case by T. F. Pitts against Kate Britt. Judgment for plaintiff, and defendant appeals. Affirmed.

Upon the introduction of all the evidence, the court, at the request of the plaintiff in writing, gave the general affirmative charge in his behalf, and refused the affirmative charge requested by the defendant. To each of these rulings the defendant separately excepted. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court upon the pleadings, and the giving of the charge requested by the plaintiff, and the refusal to give the charge requested by the defendant.

A. H Alston and G. L. Comer, for appellant.

A. H Merrill and Evans & Williams, for appellee.

McCLELLAN J.

Parish sued White in detinue to recover certain six bales of cotton. Anglin interposed a claim to the cotton by filing affidavit and giving the statutory bond. Britt & Co. and T. F. Pitts were the sureties on this bond. Pending this claim suit, the cotton was released from the seizure, and came into the hands of Britt & Co., or, rather, of Kate Britt, who carried on business and signed by another said bond in and by that name and she sold the property, and converted the proceeds to her own use more than a year before the present action was instituted. Within a year before this suit was brought, the claim suit was determined in favor of plaintiff in the original action, and there was judgment for the property with assessment of the value thereof, against Anglin. The property not being delivered, there was judgment and execution against Anglin and the sureties on said bond, Britt & Co. and Pitts, for the assessed value thereof, etc. Pitts paid this judgment, and instituted the present action on the case against Kate Britt to recover damages alleged to have been sustained by him because of her failure to deliver said cotton under the judgments in the detinue and claim suits. Defendant pleaded to the complaint as amended: (1) The general issue; (2) the statute of limitations of one year; and (3) "that at the time of the execution of the bond or instrument, the foundation of the suit, she was a married woman, the wife of John T. Britt." Plaintiff replied to this last plea: "(1) That the cause of action set forth in the complaint is for the tort alleged to have been committed by the defendant, and, if she be a married woman, as alleged in the plea, she is liable for said tort, and said plea is no answer to this action; (2) that the liability of the defendant on the bond mentioned in said plea has been adjudicated by a former judgment of this court; and (3) that if it be a fact that defendant, by reason of her coverture, was not liable upon said bond, yet, having received said property levied upon, it became her duty to restore the same to the satisfaction of said judgment, and, failing in this, she is guilty of a fraud in law, and is therefore liable in this action." Defendant demurred to this replication on the grounds: "(1) That the complaint filed in said cause is upon a contract, and not in tort; and (2) that the complaint filed in said cause is ex contractu, and said replication is no answer to said plea."

The court was clearly right in overruling these assignments of demurrer to the replication. The suit is not on the bond, but for a breach of duty...