Forbes & Carloss v. Plummer

Decision Date30 November 1916
Docket Number6 Div. 180
CourtAlabama Supreme Court
PartiesFORBES & CARLOSS et al. v. PLUMMER.

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Trover by Theodore Plummer against Forbes & Carloss, Carloss as surviving partner and individually, and one Hardison. Judgment for plaintiff, and defendants appeal. Affirmed.

M.B Curry, of Carrollton, and W.J. Monette and J.M. Foster, both of Tuscaloosa, for appellants.

H.A. &amp D.K. Jones, of Tuscaloosa, for appellee.

MAYFIELD J.

Appellee sued appellants and one Hardison, in trover, for the conversion of one sawmill and attachments, and recovered a judgment for about $1,500, as damages, from which judgment defendants appeal.

The general issue and several special pleas were interposed among which were, res judicata, the statute of limitations of six years and a plea in the nature of recoupment or mitigation of damages. This last plea set up an unsatisfied and paramount lien on the property in favor of Carloss, or of Forbes & Carloss, of which firm Carloss was the surviving member. Carloss was sued in the capacity of such surviving partner, as well as individually.

The pleas of res judicata were based upon (or set up) a suit, and judgment thereon, theretofore brought against these defendants, to recover damages for the conversion of one edger, which was claimed to be a part of the sawmill involved in this suit. Plaintiff had obtained a judgment in that case in the trial court, and it was offered on appeal to this court. See report of the case of Hardison et al. v. Plummer, 152 Ala. 619, 44 So. 591. The facts necessary to be set out on the appeal in the case at bar are well stated in the opinion in the case of Hardison v. Plummer, 152 Ala. 620-621, 44 So. 591.

These pleas of res judicata, however, were unavailing as a defense, for the reason that the proof showed that the conversion of the edger involved on the former appeal, and the alleged conversion of the sawmill, were separate and distinct wrongs, and that the wrongs now complained of had not been committed when the former action was brought. We see no reason to depart from the holding of this court on the former appeal; and it settled the law of this case to the effect that the defendant was not entitled to the affirmative charge, the evidence on this appeal being very similar to that on the former appeal.

It is true that the statute of limitations of six years, and the one in mitigation of damages, were interposed on this trial, and not on the other; but clearly the defendants were not entitled to the affirmative charge on the first issue, and the second was not interposed in bar, but only in mitigation of damages.

The trial court fell into error in charging the jury as to the burden of proof relating to the pleas of the statute of limitations. In the oral charge the court, after referring to the pleas of the statute of limitations of six years, instructed the jury that the burden of proof was on defendants to show that this suit was commenced within six years after the conversion. At the request of plaintiff the court also gave the following written instruction to the jury:

"The court charges the jury that when a party sets up the statute of limitations as a defense to his suit the burden is upon him to reasonably satisfy the jury that said cause of action has been barred by the statute of limitations, and if the jury are not reasonably satisfied that more than six years elapsed from the time said property was converted by the defendants to the time that this suit was brought, then the jury must find a verdict for the plaintiff, if they are reasonably satisfied from the evidence that the defendants so converted said property, and must fix the amount of the damages at the value of the property at the time of the conversion, with interest thereon from the time of conversion."

It is a rule of evidence and pleading that the burden of proof is on the defendant as to special pleas or defenses; but as to pleas of the statute of limitations and of the statute of frauds the burden seems to be placed under an exception to the rule. As to pleas setting up the statute of limitations the law is stated by Mr. Greenleaf, and as stated by him has been quoted and followed by this court:

"When the statute of limitations is set up in bar of a right of action, by the plea of actio non accruit sex annos, which is traversed, the burden of proof is on the plaintiff to show both a cause of action and the suing out of process within the period mentioned in the statute." Condon v. Enger, 113 Ala. 233, 21 So. 227; 4 Mayf.Dig. 102.

As to the statute of frauds, the exception to the rule is that when issue is taken on such plea, the burden is on the plaintiff to show a valid contract. Jonas v. Field, 83 Ala. 445, 3 So. 893. In the latter case it is said:

"On the plea of the statute of frauds, it is incumbent on the plaintiff to establish, either a contract in writing, or a contract not required by the statute to be in writing. The complaint sets out a contract valid in form, and on the pleadings he is required to prove a valid contract. When the statute of limitations is pleaded, the burden rests on the plaintiff to prove a cause of action within the period of the bar. The same rule applies when the statute of frauds is pleaded. As to pleas of the statute of limitations and the statute of frauds, the plaintiff is required to show facts which avoid the effect of the pleas; as, when he relies on a parol contract, the burden is on him to establish a contract not required by the statute to be in writing. Marston v. Swett, 66 N.Y. 206 ; Taylor v. Spears, 1 Eng. 381; Wood's Prac.Ev. 650."

The above rule has been often followed in later cases. See Jones v. Hagler, 95 Ala. 529, 10 So. 345; McKinnon v. Mixon, 128 Ala. 612, 616, 29 So. 690; Lord v. Calhoun, 162 Ala. 446, 50 So. 402.

We are of the opinion, however, that the error in this case, as to the burden of proof on this issue, was harmless, for the reason that the undisputed evidence, corroborated by the record proper, conclusively shows that the action was brought within six years from the date...

To continue reading

Request your trial
12 cases
  • U.S. Fidelity and Guaranty Co. v. Bass
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 25 juin 1980
    ...a strict requirement and that in certain situations no title at all is required. See Hamilton v. Hamilton, supra; Forbes & Carloss v. Plummer, 198 Ala. 162, 73 So. 451 (1960); Farrow v. Wooley & Jordan, 149 Ala. 373, 43 So. 144 (1907); Montgomery Gas-Light Co. v. Montgomery & Eufaula Railwa......
  • Sullivan v. Miller
    • United States
    • Supreme Court of Alabama
    • 24 mars 1932
    ...... cause for complaint. 38 Cyc. 2103; Strong v. Strong,. 6 Ala. 345; Forbes & Carloss et al. v. Plummer, 198. Ala. 162, 73 So. 451; Fields v. Copeland, 121 Ala. 644, 26 So. ......
  • McCaa v. Thomas
    • United States
    • Supreme Court of Alabama
    • 2 février 1922
    ...... covered by the oral charge (Aquilino v. B. R. L. & P. Co., 201 Ala. 34, 77 So. 328; Forbes v. Plummer, 198 Ala. 162, 73 So. 451; L. & N. R. R. Co. v. Davis, 196 Ala. 14, 71 So. 682). . . ......
  • H. H. Johnson v. Estate of Evelyn Samson
    • United States
    • United States State Supreme Court of Vermont
    • 5 janvier 1943
    ...... Cooley v. Hatch, 91 Vt. 128, 133, 99 A. 784; [113 Vt. 42] Forbes et al, v. Plummer,. 198 Ala. 162, 73 So. 451, 453. It cannot be said that the. burden has been ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT