Geneva Gin & Storage Co. v. Rawls, 4 Div. 163.

• Decision Date: 17 October 1940
• Docket Number: 4 Div. 163.
• Citation: 199 So. 734,240 Ala. 320
• Parties: GENEVA GIN & STORAGE CO. v. RAWLS ET AL.
• Court: Alabama Supreme Court

199 So. 734

240 Ala. 320

GENEVA GIN & STORAGE CO. v. RAWLS ET AL.

4 Div. 163.

Supreme Court of Alabama

October 17, 1940

Rehearing Denied Dec. 12, 1940.

Certiorari to Court of Appeals.

Petition of Geneva Gin & Storage Company for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Geneva Gin & Storage Co. v Rawls et al., 199 So. 732.

Writ granted.

Mulkey & Mulkey, of Geneva, for petitioner.

Harry Adams, of Enterprise, opposed.

KNIGHT Justice.

This cause is before us to review and revise the opinion and judgment of the Court of Appeals in the case of Geneva Gin & Storage Co. v. J. P. Rawls et al., 199 So. 732.

The suit was instituted in the Circuit Court of Geneva County by the petitioner here, the said Geneva Gin and Storage Company against the said Rawls and Donnell for the conversion of three bales of lint cotton, the property of the plaintiff. The complaint charges a conversion jointly by the two named defendants.

The cause was tried in the circuit court on an agreed statement of facts which is set out in the opinion of the Court of Appeals as follows: "If the plaintiff is entitled to recover the amount thereof is $152.10. The cotton in question belonged to plaintiff and was stolen by Henry Donnell on or about the date named in the complaint out of its warehouse in Geneva County. Donnell used his own truck for the delivery of the cotton to defendant J. P. Rawls in Coffee County; selling the cotton to Rawls, who paid to him the market price therefor without actual or constructive notice that the cotton was stolen."

Upon the agreed statement of facts the circuit court rendered judgment for both defendants. The Court of Appeals has affirmed this judgment. We are now called upon to review and revise this judgment of the Court of Appeals.

No doubt the judge of the circuit court, who tried this case without a jury, was of the opinion that, while the complaint claimed as for a joint tort by the two defendants, the evidence showed separate torts by defendants; that while Rawls was guilty of a tort in acquiring the possession of and assuming dominion over, the cotton of plaintiff, he did so without knowledge, actual or constructive, that the cotton had been stolen from plaintiff, and therefore he was not a joint tort-feasor with the thief, the said Donnell, and could not be jointly sued with him.

The court of appeals, it is evident, took a similar view. No doubt both courts were impressed that the case of Larkins & Moore v. Eckwurzel, 42 Ala. 322, 94 Am.Dec. 651, was controlling.

It is evident that in the Eckwurzel case the court overlooked the statute then in force, now Section 5720 of the Code. Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A.,N.S., 670, 14 Ann.Cas. 1139. Section 5720 of the Code provides: "When a suit is instituted against several defendants, whether sued as partners or otherwise, the plaintiff may recover against one or more, but is liable to costs to those against whom he does not obtain judgment."

It is well-settled law, of course, that one who steals the property of another is guilty of a tort against the owner, for which the latter may bring an action for conversion. And it is also well settled that the trespass, committed in the original taking, did not in contemplation of law divest the true owner of the possession; and "every moment's continuance of the trespass and felony is, in legal consideration, a new caption and asportation." Smith v. State, 55 Ala. 59.

It is also the law that whoever undertakes tortiously to deal with the property of another as his own, or tortiously detains it from the true owner, is, in contemplation of the law, guilty of a conversion. A "conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising of dominion over it, in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own." Conner & Johnson v. Allen & Reynolds, 33 Ala. 515.

In fact every unlawful intermeddling with the goods of another is a conversion, and it is no defense to an action by the true owner that the person so receiving the goods, was ignorant of his title. Lee v. Mathews, 10 Ala. 682, 44 Am.Dec. 498; Hudmon Bros. v. Du Bose, 85 Ala. 446, 5 So. 162, 2 L.R.A. 475; Gruntal v. United States Fidelity & Guaranty Co., 254 N.Y. 468, 173 N.E. 682, 73 A.L.R. p. 1342.

A person who has stolen the goods of another cannot pass any title thereto to another, whether such other knew, or did not know, that the goods were stolen. 4 R.C.L. 294.

Both the thief, Donnell, and the purchaser were guilty of a conversion of plaintiff's property and were liable in an action of trover to the owner, plaintiff.

It is axiomatic that a sale, whether legal or illegal, requires two parties, a seller and a purchaser, and a sale requires concurrent acts, one the sale and delivery of the property, and the other, the purchasing and receiving the same.

When the thief,...