Forbes v. Rogers

• Decision Date: 09 February 1905
• Parties: FORBES v. ROGERS.
• Court: Alabama Supreme Court

38 So. 843

143 Ala. 208

FORBES v. ROGERS.

Supreme Court of Alabama

February 9, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Mamie Rogers against E. E. Forbes. From a judgment for plaintiff, defendant appeals. Reversed.

Geo Stowers, for appellant.

Pearson & Richardson, for appellee.

ANDERSON J.

This was an action of trover for the conversion of a piano. The case was tried by the judge without a jury, who rendered judgment for the plaintiff, and the defendant appeals.

The demurrer to plea No. 1 was properly sustained. The action was in tort, and could be brought either in the county where defendant resided or where the tort was committed. The plea denies that defendant resides in Montgomery county, but does not deny that the tort was committed in said county. Code 1896, § 4205.

The action of the trial judge in striking pleas will not be reviewed by this court when the bill of exceptions fails to set out the motion.

It seems that plaintiff made a contract with defendant's agent, August 30, 1901, whereby she exchanged her old square piano (the one in controversy) for an upright Wilbur piano and agreed to pay the defendant the difference in the price mutually agreed upon, and which was set out in the written contract. Plaintiff testified that at the time the contract was executed it was verbally agreed between her and the agent that the new piano was to be delivered within a week at Pine Hill, Ala. On the next day defendant wrote plaintiff the following letter: "Montgomery, Ala., Aug. 31, 1901. Mrs Mamie Rogers, Pine Hill, Ala. Dear Madam: Your order for a fine Wilbur Piano through Mr. Miles, is received, and as I want you to have an extra good instrument, I have taken the liberty of ordering piano direct from the factory to you, as the one in Mobile, I am afraid you would not exactly like it and as I sold yesterday evening, or rather got permission to place the last one that I have in the store, and as I am anxious for you to get something extra good as a sample, as above stated, I have ordered one shipped from the factory. I hope that this delay will not inconvenience you a great deal and will meet with your approval, but in the event you don't want to wait for the piano to come from the factory, if you will wire me at my expense Monday, I will ship you that one from Mobile. Now the price that Mr. Miles has given you is very low, I don't consider we are making any money at all out of the transaction, and I hope that you will treat this price strictly confidential. Thanking you in advance, I remain, Yours respectfully, E. E. Forbes." Plaintiff admitted getting this letter, and testified: That she immediately sent him the following telegram: "Pine Hill, Ala., Sept. 2, 1901. E. E. Forbes, Mtg. Have decided not to have piano shipped here will write you later. Mrs. Mamie Rogers." That at the same time she sent him the following letter: "Pine Hill, Ala., Sept. 2, 1901. Mr. E. E. Forbes, Sir: I received your letter to-day in regard to piano and was...