C.W. Zimmerman Mfg. Co. v. Dunn

• Decision Date: 16 April 1907
• Citation: 44 So. 533,151 Ala. 435
• Parties: C. W. ZIMMERMAN MFG. CO. v. DUNN ET AL.
• Court: Alabama Supreme Court

44 So. 533

151 Ala. 435

C. W. ZIMMERMAN MFG. CO. v. DUNN ET AL.

Supreme Court of Alabama

April 16, 1907

Appeal from Circuit Court, Clarke County; S. H. Sprott, Judge.

Action by William D. Dunn and others against the C. W. Zimmerman Manufacturing Company. From a judgment for plaintiffs defendant appeals. Reversed and remanded.

This was an action begun by appellees and one Daffin against the appellants. The first count is in trover for the conversion of certain timber, alleged to have been cut and hauled off of a certain 80 acres of land belonging to plaintiff. The second count was in trespass, in the entry of the land and cutting of the timber thereupon. The third count was in simple trespass of the land. What occurred as to the amendment is sufciently set out in the opinion. The assignments of error growing out of the admission and rejection of testimony together with the substance of the testimony, sufficiently appears in the opinion.

Wilson & Aldridge, R. W. Stoutz, and Stevens & Lyons, for appellant.

A. L McLeod, for appellees.

SIMPSON J.

This was an action of trover, brought by the appellees and one Daffin for the conversion of lumber. During the progress of the trial the plaintiffs were allowed to amend the complaint by striking out the name of Daffin as a party plaintiff, and making the complaint state that the remaining plaintiffs sued only for the conversion of their two-thirds interest in said lumber, and also by adding a count for the conversion of their two-thirds interest in 1,078 pine logs. The defendants moved for a nonsuit, and also demurred to the complaint as amended: (1) Because the two plaintiffs cannot recover; (2) because the plaintiffs have only a part interest in the chattels, and the cause cannot be split.

The first two assignments of error are to the action of the court in overruling said motion and demurrer. There was no error in the action of the court in this matter. The action of trover may be maintained by part owners of a chattel for the conversion of their interest. White v. Morton, 22 Vt. 15, 52 Am. Dec. 75; McGowen and Wife v. Young, 2 Stew. 276; Strong v. Strong, 6 Ala. 345; Lowery v. Rowland, 104 Ala. 420, 426, 16 So. 88.

The court erred in permitting the witness Daffin, over the objection of the defendant, to testify that one Pritchett, who was agent of the defendant, had, prior to the alleged trespass, "made overtures with reference to purchase of the hardwood timber on the lands mentioned," etc. Said evidence was irrelevant to the issue involved in this case.

The court erred in admitting the statement of account, which, according to the testimony of the witness Dunn, was handed to him as a part of the negotiations for a compromise. This was not shown to be an admission of distinct facts, within the rule laid down in Matthews v. Farrell, 140 Ala. 298, 308, 37 So. 325, and cases cited. In addition it may be said no authority is shown in the attorney to bind his client.

The assignments referring to the sufficiency of the evidence of possession by plaintiffs to establish title are without merit, as the defendant's subsequent evidence showed that it claimed under the plaintiffs, and therefore could not deny their title.

The objections to the introduction of the "scaling book" produced by the...