Clem v. Wise

• Decision Date: 24 April 1902
• Parties: CLEM v. WISE.
• Court: Alabama Supreme Court

31 So. 986

133 Ala. 403

CLEM v. WISE.

Supreme Court of Alabama

April 24, 1902

Appeal from circuit court, Limestone county; H. C. Speake, Judge.

Action by George W. Wise against Wiley Clem. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was a statutory action of detinue, brought by the appellee George W. Wise, against the appellant, Wiley Clem, to recover two mules. The suit was originally commenced in a justice of the peace court, and from a judgment rendered in said court in favor of the plaintiff the defendant appealed to the circuit court. In the circuit court the plaintiff filed a new complaint for the recovery in detinue of the same mules. On the trial of the case it was shown that one J. M. Todd, on January 17, 1898, executed a mortgage upon the mules involved in the controversy to the Wise Mercantile Company, a corporation organized to carry on the mercantile business and that this mortgage was duly recorded in the probate office. The loss of this mortgage was proved, and a certified copy of said mortgage, taken from the records of the probate court, was introduced in evidence. The plaintiff, as a witness in his own behalf, testified that he was formerly president of the Wise Mercantile Company; that he and J. H Humphrey and J. R. Martin were the stockholders and directors of said Wise Mercantile Company; that he (the plaintiff) purchased from the Wise Mercantile Company the mortgage, a copy of which was introduced in evidence, together with the other property owned by said mercantile company. The plaintiff then introduced in evidence the following writing signed by G. W. Wise, J. H. Humphrey, and J. R. Martin "The board of directors of the Wise Mercantile Co. met to-day, and by unanimous consent sold the entire business interests and goods and chattels, accounts, notes, and mortgages to Geo. W. Wise, and we hereby authorize the president of the Wise Mercantile Co. to transfer all its interest to said Geo. W. Wise, for which he is to collect from said Geo. W. Wise full face value of all stock and such dividend as is shown when trial balance is gotten off, and to pay such amount as may be due to each stockholder, for which he is to receive and cancel all such capital stock outstanding. The president is also hereby authorized to have the charter canceled on record, so as to show that the Wise Mercantile Co. is no longer a corporation, and has gone out of business." The defendant objected to the introduction of said paper in evidence upon the grounds: (1) That it did not appear that it was executed by any one authorized and competent to execute it; (2) that it did not appear that the same was a valid transfer to the plaintiff. The court overruled the objection, allowed the paper to be introduced in evidence, and the plaintiff duly excepted. The plaintiff then introduced in evidence the following by-law of the Wise Mercantile Company: "The corporate powers of this company are vested in a board of three (3) directors, who shall be elected annually by a majority of stock voted from among the stockholders, and shall hold office until succeeded." The further testimony of the plaintiff relating to his taking possession of the assets of the mercantile company after its sale to him is copied in the opinion. J. M. Todd, as a witness for the plaintiff testified that prior to the execution of the mortgage upon the mules sued for to the Wise Mercantile Company, he executed a mortgage upon the same mules to one Bingham, but that the mortgage to Bingham was not recorded until a year after the registration of the Wise Mercantile mortgage; that said Bingham took possession of the mules from the witness Todd after the execution and registration of the mortgage given to the Wise Mercantile Company, and he carried the mules to Limestone county, and sold them to the defendant, who knew of the mortgage held by the Wise Mercantile Company; and that said Bingham also knew of the existence of the mortgage to the Wise Mercantile Company. The value of the mules was shown to be from $60 to $75 each, and the value of the hire or use of them was shown to be $20. Upon the plaintiff being reintroduced as a witness, he testified that he had no knowledge or notice of any kind of the existence of the mortgage given by Todd to Bingham; that, after the Wise Mercantile mortgage became due, he learned that the defendant had the mules, and that he demanded them of the defendant, who refused to surrender them. Upon the introduction of all the evidence for the plaintiff, the defendant moved the court...