Fields v. Copeland

• Decision Date: 13 April 1899
• Citation: 121 Ala. 644,26 So. 491
• Parties: FIELDS v. COPELAND.
• Court: Alabama Supreme Court

26 So. 491

121 Ala. 644

FIELDS v. COPELAND.

Supreme Court of Alabama

April 13, 1899

Appeal from circuit court, Blount county; J. A. Bilbro, Judge.

Trover by W. J. Copeland against A. E. Fields for the conversion of certain mortgaged chattels. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This was an action of trover, brought by the appellee, W. J Copeland, against the appellant, A. E. Fields, to recover damages for the conversion by the defendant of two mules, two cows, two calves, and other stock, and a wagon and a set of harness. The cause was tried upon issue joined upon the plea of not guilty. The evidence tended to show that the plaintiff, to secure an indebtedness which he owed the defendant, executed to him a mortgage, in which he conveyed the property mentioned in the complaint, and alleged to have been converted; that this mortgage was in due form, with full power of foreclosure in case of default of payment at maturity; that prior to the execution of this mortgage the plaintiff executed another mortgage to McIntyre & Co. to secure an indebtedness to them, in which mortgage there was conveyed one of the mules included in the mortgage to the defendant. Among other stipulations in the mortgage to McIntyre & Co., it was stipulated that, if the mortgagor "should remove or sell any of said property before the payment of said debt," then, in that event, McIntyre &amp Co. were authorized to immediately take possession of the property included in said mortgage. It was further shown that McIntyre & Co. had transferred their mortgage on plaintiff's property to the defendant, and that the plaintiff had swapped or changed a part of the property described in the McIntyre mortgage for other property, but none of the property so disposed of was involved in this controversy. The law day of the mortgage to the defendant was October 1, 1895. It was then shown that in June, 1895, the defendant, as mortgagee and as transferee of the mortgage from McIntyre & Co., took possession of the property involved in this controversy; that plaintiff was absent from the state at the time the defendant so took the property; and that when the plaintiff returned, he stated to the defendant that he wanted to pay off the mortgage, and get his property back but that, as he had no money, he wanted to work in order to pay the indebtedness. It was shown by the evidence that there was an agreement between the plaintiff and the defendant by which the plaintiff was to pay off the mortgage, and the property which had been taken was to be returned to the plaintiff. The plaintiff's testimony tended to show that the agreement was that the plaintiff was to work for the defendant, and that the proceeds of his work over and above what was required for his support was to go to plaintiff's credit, and be applied by defendant in payment of the mortgage indebtedness, and, when plaintiff had paid off the mortgages, the defendant was to give him his property back, and plaintiff was to take it back if it was in as good condition as when defendant took it under said mortgage. The evidence for the defendant tended to show that the agreement as to the return of the property to the plaintiff was that if the defendant, who had traded off some of the property, could get it back, he would turn the property over to him, and, if the defendant could not get the property back, he would give the plaintiff as good property in its place, or pay him for it; and, if they could not agree, they should select parties to settle it for them; and that plaintiff then told defendant that that would be all right. The other material facts of the case are sufficiently stated in the opinion.

One Bert Addington was introduced as a witness for the defendant and testified that he heard part of a conversation between the plaintiff and the defendant, in which they were talking about a cow, and that he heard the defendant say to the plaintiff that he meant to treat him all right in the matter; and that the defendant told plaintiff that he had a cow, and, if the plaintiff liked, he could take it, and, if it was not as good as the plaintiff's cow, he (the defendant) would make it all right. The defendant then asked this witness the following question: "State whether or not the parties agreed as to the subject-matter of this conversation." The plaintiff objected to this question on the ground that it called for the conclusion of the witness. The court sustained this objection, and the defendant duly excepted. The defendant then asked the witness this question: "Did they agree?" The plaintiff objected to this question, because it called for the conclusion of the witness. The court sustained the objection, and the defendant duly excepted. The defendant then asked the witness this question: "Did they dispute with each other?" The plaintiff objected to this question. The court sustained the objection, and to this ruling the defendant duly excepted.

Upon the introduction of all the evidence the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence in this case, they will find for the defendant." (2) "If the jury believe the evidence in this case, the plaintiff cannot recover for the mare mule." (3) "If the jury are reasonably satisfied from the evidence that before the commencement of this suit the defendant offered the horse mule to the plaintiff, and sent it to the house of plaintiff, then plaintiff cannot recover in this action for the horse mule." (4) "If you believe the evidence in this cause, the plaintiff cannot recover in this action more than the value of the use of hire of the property mentioned in the complaint from the time it went into the possession of Fields until the law day of the mortgage." (5) "If the jury are reasonably satisfied from the evidence that before the commencement of this suit the defendant offered to deliver the mare mule to the plaintiff, and erase it from the mortgage, and the plaintiff refused to take the mule, or to accept her, the plaintiff cannot recover for that mule in this action." (6) "If the jury believe from the evidence that the plaintiff did not pay the mortgage debt at the time it became due, there was a default and a forfeiture, and upon such default Fields, having possession of the property, became absolute owner of it. Though you may believe that he wrongfully took the property before the mortgage was due, the tort committed was cured and healed as to the plaintiff, Copeland, in this action, by the default of plaintiff in failing to pay the mortgage indebtedness when due, and plaintiff cannot recover in this action." (7) "If the jury are reasonably satisfied from the evidence that, after Fields had taken possession of the property, the plaintiff, with full knowledge of that possession, and of the disposition made of the property by Fields, recognized the possession of Fields,...