First Nat. Bank v. Burnett

• Decision Date: 26 March 1925
• Docket Number: 7 Div. 522
• Citation: 104 So. 17,213 Ala. 89
• Parties: FIRST NAT. BANK OF GADSDEN v. BURNETT.
• Court: Alabama Supreme Court

104 So. 17

213 Ala. 89

FIRST NAT. BANK OF GADSDEN v. BURNETT.

7 Div. 522

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action in trover by the First National Bank of Gadsden against J.F Burnett. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Goodhue & Lusk, of Gadsden, for appellant.

Culli Hunt & Culli, of Gadsden, for appellee.

MILLER J.

This is a suit by the First National Bank of Gadsden, a corporation against J.F. Burnett for damages for the conversion by him of 14 bales of cotton, the property of the plaintiff. The defendant pleaded general issue and estoppel in short by consent, with leave for plaintiff to make appropriate replication; and all evidence is to be applied to such pleas and replication. The cause was tried by the court without a jury; the witnesses were examined orally in the presence of the court; and from a judgment in favor of the defendant this appeal is prosecuted by the plaintiff.

The plea of general issue, not guilty, in trover puts "in issue every matter which might be pleaded in bar, except a release." Ryan v. Young, 147 Ala. 664, 41 So. 954. See, also, Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am.St.Rep. 54.

This cause was tried by the court without a jury. The witnesses were examined orally in the presence of the court. The facts found by him are equivalent to the verdict of a jury, and its conclusion will not be disturbed unless plainly contrary to the great weight of the evidence. Finney v. Studebaker, 196 Ala. 422, headnote 4, 72 So. 54; Christie v. Durden, 205 Ala. 571, headnote 1, 88 So. 667.

The appellant concedes in brief that from the evidence it had no title to one bale of the cotton, and that there was some evidence to support the judgment of the court for the defendant as to nine bales of the cotton; but it insists that the court clearly erred in rendering judgment in favor of defendant for the two bales raised in 1921 by Tom Croft and for the two bales raised in 1921 by A.J. Tidmore, which four bales were sold to the defendant by J.P. Griffith. To sustain the action of trover, the plaintiff must at the time of the conversion of the property own it, or have a general or special right to the property, coupled with the possession of it or an immediate right to the possession of it. Southern Ry. Co. v. City of Attalla, 147 Ala. 653, headnote 1, 41 So. 664; Pinckard v. Cassels, 195 Ala. 353, headnote 4, 70 So. 153.

The plaintiff claims and proves title to it and its ownership of the nine bales of cotton, and its possession of them by nine warehouse receipts for them, which were given to it in 1920 by J.P. Griffith. Six of these bales belonged to Tom Croft, had been raised by him in 1920. J.P. Griffith had a mortgage on this cotton crop given by Tom Croft. The mortgage was transferred by Griffith to plaintiff. The six warehouse receipts for it were delivered to the plaintiff. G.W. Stone gave a mortgage on his cotton crop for 1920 to J.P. Griffith. This mortgage was transferred to plaintiff by Griffith. One bale of the cotton raised by the mortgagor was placed in the warehouse, and the receipt for it was delivered to the plaintiff by Griffith. H.H. Robertson gave a mortgage on his cotton crop for 1920 to J.P. Griffith; this mortgage was transferred by Griffith to the plaintiff. Two bales of cotton raised by this mortgagor were placed in the warehouse, and receipts for them were delivered by Griffith to the plaintiff. There was evidence that these mortgagors desired their cotton held for better prices, and J.P. Griffith placed their warehouse receipts with plaintiff for that purpose.

The evidence for the defendant tended to show the plaintiff in 1921 delivered these nine warehouse receipts for these nine bales of cotton to J.P. Griffith or to his brother for him, with instructions to sell the cotton; and there was some evidence to the contrary, J.P. Griffith sold these nine bales to the defendant at market price for a cash consideration, which was paid to him. From the weight of the evidence it appears that J.P. Griffith had authority from the plaintiff to sell these nine bales, and the court properly held that the defendant was not liable to the plaintiff for this action.

As to the remaining four bales of cotton, they were raised in the year 1921--two by Tom Croft, and two by A.J. Tidmore. The two bales of A.J. Tidmore were placed by him in the warehouse the receipts for it were given to J.P. Griffith by him. Tidmore executed to J.P. Griffith on January 19, 1921, a mortgage on his cotton crop of 1921, to secure a debt of $625.75. This mortgage, with the debt secured by it, was transferred to plaintiff by Griffith, the mortgagee. These two bales of cotton were sold to the defendant by J.P. Griffith in the fall of 1921 for cash at market price, and the price was paid by defendant to him. There was evidence tending to show that J.P. Griffith was engaged for years in farming and the live stock business, selling mules on credit, making advances, taking mortgages on chattels and crops to secure the debts; that for years he did business with this bank, the plaintiff; and for years he would transfer to it these mortgages, and when the mortgagors delivered the cotton it was received by Griffith, the mortgagee, if the bank had the mortgage, and the cotton was sold by the mortgagee and the proceeds given to the bank. There was evidence and reasonable inferences from the evidence tending to show that the mortgagee, J.P. Griffith, in all these mortgages which were...