Clay County Abstract Co. v. McKay

• Decision Date: 30 March 1933
• Docket Number: 7 Div. 113.
• Citation: 147 So. 407,226 Ala. 394
• Parties: CLAY COUNTY ABSTRACT CO. v. McKAY.
• Court: Alabama Supreme Court

147 So. 407

226 Ala. 394

CLAY COUNTY ABSTRACT CO. v. McKAY.

7 Div. 113.

Supreme Court of Alabama

March 30, 1933

Appeal from Circuit Court, Clay County; W. B. Merrill, Judge.

Action in trespass and trover by the Clay County Abstract Company against C. W. McKay. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Pruet &amp Glass, of Ashland, for appellant.

A. L Crumpton, of Ashland, for appellee.

BROWN Justice.

Action by the appellant against the appellee resulting in a verdict and judgment for the defendant.

The case was submitted to the jury on counts 1, 2, 3, and 4 of the complaint, and the plea of the general issue.

The first count is in trespass for the wrongful taking of personal property described as follows: "A copy or the copying of the abstract books or and records, and or papers of" the plaintiff. (Italics supplied.)

Counts 2, 3, and 4 are counts in trover, substantially in the form prescribed by the statute (Code 1923, § 9531, form 26).

The second count describes the property as "A portion of the abstract books or and records or and papers of the Clay County Asstract Company," etc. (Italics supplied.)

Count 3 describes the property converted as "A copy of the abstract books or and records or and papers of the Clay County Abstract Company," etc. (Italics supplied.)

The description of the property in count 4 is as follows: "A portion of the abstract books or and records or and papers * * * the property of the plaintiff." (Italics supplied.)

The court sustained the defendant's demurrers to counts 5 and 6, and this ruling is made the predicate for assignments of error 3 and 3 1/2.

By count 5, plaintiff claims of the defendant $4,000 as damages for that "during the year 1927, and for some time prior thereto, the plaintiff and the defendant had an oral agreement whereby the plaintiff was to furnish its books to the defendant, and the defendant to retain possession of same for the purpose of making abstracts of the land titles described and set out therein, the proceeds derived from said abstracts so made by the defendant to be equally divided between the plaintiff and the defendant, and plaintiff further avers that while the defendant had in his possession the books of the plaintiff, he converted to his own use, or the use of another, said books and or records or a copy thereof, during the year 1927, the property of the plaintiff." (Italics supplied.)

The averments of count 6 are substantially the same as count 5, and the property alleged to have been converted is described as "a portion of said books and or records or a copy thereof." (Italics supplied.)

The description of the property is too indefinite and uncertain to withstand appropriate demurrer. It is doubtful whether the interloper "and/or" has any appropriate place in the English language, but it is certain that it has no place in pleading, where the law requires that the pleader must state his cause of action or ground of defense with certainty to a common intent. Cronin v. Crooks, 143 N.Y. 352, 38 N.E. 268; Schwartz Motor Co. et al. v. Bradley Real Estate & Ins. Co., 220 Ala. 295, 125 So. 26; Walker v. Dorsett, 221 Ala. 623, 130 So. 380; American Bar Association Journal, September 1932; Ib. January 1933, page 55.

The evidence shows that plaintiff owned a set of abstract books, consisting of loose leaves bound in two volumes, containing a concrete index to all land conveyances in Clay county, which it used in its business of making abstracts of titles for hire; that when an abstract was made it kept a copy thereof for future reference, and that it had a number of such copies; that it also owned a great number of blank leaves for use in keeping said books up to date, and other stationery suitable for the making of abstracts; that in October, 1925, the plaintiff, acting through its president, E. P. Gay, entered into a contract with the defendant and turned over to him all of said property to be used by the defendant in the making of abstracts of title, the fees charged and received therefor to be equally divided between the parties; this arrangement to be terminated at the will of either of the parties.

At about the time the above-stated agreement was made, Gay sold to the defendant his law library and "all other books, papers, furniture, fixtures and office equipment now (then) owned by E. P. Gay."

The arrangement between plaintiff and defendant continued until 1927, when by mutual agreement of the parties it was terminated, and defendant turned back to the plaintiff said abstract books, but, according to the plaintiff's evidence, did not return the copies of abstracts, blank loose leaves, and blanks for making abstracts, though demand therefor was made on him before this suit was filed.

Plaintiff offered evidence tending to support an inference that defendant had used said loose leaves in making a copy of said abstract books, which the defendant kept for his own use. Fifteen of said sheets were found stored away in defendant's office under a lot of other stuff; said sheets being placed at the bottom of the cabinet and the other stuff piled on top. These were taken in charge by the witness McCain, and were in plaintiff's possession when the action was instituted. The plaintiff offered evidence going to show the value of the blanks, and the value of the copies of abstracts.

The defendant's evidence tended to show that he purchased all the stationery in the office where the library was situated when he purchased the library, and that he furnished his own abstract blanks; that the copies of abstracts referred to were allowed to remain in the office which he occupied, after Gay quit the practice of law and moved to Florida; that they were scattered over the office in different places, some being left in the coal bin or box and that he regarded them as worthless; that when Gay returned and moved back into the office he told defendant all he wanted was the books; that he didn't want the copies of abstracts; that thereafter in cleaning out the office these copies were burned. At this point the evidence is in conflict.

Defendant denied making copies of the books, or any part thereof, but when confronted with the fifteen sheet record by Miss McCain, he admitted that he made these copies for temporary use in making abstracts and used them in lieu of the books, as they were more convenient to handle.

On the cross-examination of plaintiff's witness Gay, he testified: "I expect this is the first time he has ever known (of) us finding that copy of the record. Yes, I kept quiet from 1927 on down until 1931 about it. It is not a fact that Mr. McKay recently brought suit and foreclosed a mortgage on me and I brought this suit against him in spite. The state of my feelings toward Mr. McKay is not good. Mr. McKay has not foreclosed a mortgage against me. * * * I own sixteen shares of the Clay County Abstract Company."

The court here, over the plaintiff's objection, allowed the defendant, on further cross-examination of Gay, to show that he was the president and a stockholder in the Clay County Trading Company; that witness had full charge of the trading company's affairs; and that about the time the defendant posted notice of the foreclosure of a mortgage on the lands of the Clay County Trading Company, this suit...