Butler v. Jones

• Decision Date: 13 May 1887
• Citation: 2 So. 300,80 Ala. 436
• Parties: BUTLER v. JONES.
• Court: Alabama Supreme Court

2 So. 300

80 Ala. 436

BUTLER v. JONES.

Supreme Court of Alabama

May 13, 1887

Appeal from city court of Selma.

Trover for conversion of "one desk, one large table, thirteen chairs, one Alabama form book, called 'Watts' Form Book,' and two inkstands," brought by Abner Jones against John G. Butler. Judgment in the justice's court having been rendered for plaintiff, an appeal was prosecuted to the city court of Selma, which latter court also rendered judgment for plaintiff, from which this appeal is prosecuted.

Among other evidence which the opinion of the court shows, the plaintiff introduced a certain writing, as follows: "I have borrowed of Abner Jones his office furniture subject to his order. March 1, 1880. [Signed] S. J HOWARD." And proved the same to be the handwriting and signature of said Howard, deceased. The defendant objected to the introduction of this paper writing, because it was void under sections 2173 and 2174 of the Code of Alabama. The court overruled the objection, and defendant excepted.

The plaintiff testified that, when he went out of office, he had the property mentioned in the complaint, and turned it over to said Howard, deceased. "I went to Howard's office about ten days before his death, and told him I wanted my furniture. He replied that he did not know what he would do and I went away, and let him keep the things longer." Plaintiff testified that he saw the articles mentioned in the complaint in the said office, and also as to their value. The defendant objected to this evidence, (1) as to what property he had delivered to Howard; (2) as to his conversation with Howard; (3) as to what he saw in Howard's office, and the value of same, and excepted to the court overruling his objections. The exceptions noted and judgment rendered are now assigned as error.

Sumter Lea, for appellant.

B F. Saffold, contra.

SOMERVILLE J.

1. The present appeal from the city court of Selma presents for our review the conclusion and judgment of the court upon the evidence as well as upon the law of the case, the trial in the lower court having been conducted without a jury. And, in passing upon the evidence, we are required to do so without any presumption in favor of the ruling of the city court in behalf of the appellee, who was plaintiff in the court below, and obtained judgment in trover against the appellant as defendant. Acts 1875-76, p. 386; Id. 390, § 14.

2. The evidence fails, in our opinion, to show a conversion of the property sued for, such as will maintain the action of trover. It is not denied that the plaintiff was the owner of the property, or that the title and right of possession were vested in him. This is clearly shown. The only question is whether the defendant was guilty of exercising over the property any dominion in exclusion or defiance of the plaintiff's right, or wrongfully detaining it from him after demand for its delivery. The chattels in controversy, consisting of office furniture and other articles, about 18 in number, were loaned by the plaintiff to one Howard in March, 1880, he being at the time a tenant of the defendant, and in the use of the chattels on the leased premises up the time of his decease, which occurred in January, 1884. The property was thus left on the premises in the constructive possession of the defendant. It is shown that, when the agent of the plaintiff demanded the possession of the articles, the defendant asked him if he knew and could point out the things which belonged to the plaintiff, to which he replied in the negative. The defendant then said, " Let Mr. Jones, [the plaintiff,] or some one who knows the things, come and get them; that Mr. Howard owed him for rent of his office, and he would hold whatever belonged to Howard for this rent under the lien which the law gave him." This qualified refusal is the gist of the alleged conversion upon which the action is founded.

While the law is that a demand and refusal are generally prima facie evidence of a conversion, a qualified, reasonable and justifiable refusal is no evidence of a conversion. It takes a wrongful refusal to constitute the defendant a tort-feasor, and in the absence of such evidence there can be no conversion. It is well settled that the possessor of goods may refuse to deliver them up until the claimant makes some proper and...