C.W. Zimmerman Mfg. Co. v. Dunn
| Court | Supreme Court of Alabama |
| Citation | 44 So. 533,151 Ala. 435 |
| Parties | C. W. ZIMMERMAN MFG. CO. v. DUNN ET AL. |
| Decision Date | 16 April 1907 |
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 [44 So. 534.] 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...
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