Haas v. Taylor

• Decision Date: 16 June 1887
• Parties: HAAS v. TAYLOR.
• Court: Alabama Supreme Court

2 So. 633

80 Ala. 459

HAAS v. TAYLOR.

Supreme Court of Alabama

June 16, 1887

Appeal from circuit court, Montgomery county.

This was an action of trover by Frank G. Taylor against J. C. Haas to recover damages for the alleged conversion of 50 bushels of cotton seed. On the trial, as shown by the record, the defendant pleaded the general issue, and a special plea averring, in substance, that in a former suit between the parties, in which Haas was plaintiff, and Taylor defendant and which was tried and determined at the December term 1884, of the circuit court of Montgomery county, before the Hon. JAMES E. COBB, the said Taylor, the defendant in that suit, "pleaded several pleas, and among them set-off viz.: That said Haas, at the beginning of said suit, was justly indebted to him, the said Taylor, to the amount of the proceeds of seventy-five bushels of cotton seed, valued at $75, which, together with other matters and amounts, said Taylor offered by said plea to set off against the demands of said Haas in said former suit, and claimed judgment over for the residue. *** And this defendant, the said J. C. Haas avers that the fifty bushels of cotton seed mentioned and described in the complaint of the said Frank Taylor in the present suit, and for the alleged conversion of which he claims damages of the said Haas in this suit, are a part of the seventy-five bushels of cotton seed, valued at $75, as aforesaid, which are mentioned in said plea of set-off, and which said Taylor offered to set off against the demands of said Haas in said former suit." The plea further averred that judgment was rendered in favor of said Haas in said former suit, and, after alleging the identity of the parties in the two suits, jurisdiction, etc., pleaded that the judgment in the former suit was a bar to the present action.

It may be stated here that the said Haas was the proprietor of a "steam cotton mill or ginnery, in the city of Montgomery, and that the cotton seed in controversy were of a valuable grade or class, known as "Jowers' Seed", and reasonably worth $1 per bushel, and were the product of certain cotton left with the defendant by the said Taylor in September, 1883. The plaintiff, specially replying to defendant's plea of res adjudicata, after denying certain allegations in said plea, averred that "just before the matters involved in said former suit in said circuit court were submitted to the jury for their determination, the Hon. J. E. COBB, the judge presiding, instructed the said jury that the said Haas, the plaintiff in said former suit, had a lien on the seventy-five bushels of cotton seed claimed in said plea as set-off on account of his, the said Haas, having ginned the cotton out of which the said cotton seed came, and, Taylor not having paid the price for ginning the same, he the said Taylor, plaintiff in this suit, but defendant in that suit, could not set off the value of said cotton seed until he had paid the cost of ginning the cotton out of which the said seed came." The replication further alleged that, "in the said judgment recovered by the said Haas against the plaintiff in said former suit, the value of said seventy-five bushels of cotton seed included in said plea of set-off filed by the defendant in that suit was not included nor considered, but that the amount claimed by the said Haas of the said Taylor for ginning the said cotton out of which the said cotton seed came was included, and the said Haas was thereby enabled to recover of the said Taylor the amount for the ginning of the said cotton out of which said cotton seed came. And plaintiff in this suit further says that he paid the judgment recovered by the said Haas of him in said former suit, before making the demand for the seventy-five bushels of cotton seed." The said Taylor concluded said replication by averring that, after paying the judgment so recovered by said Haas, the latter gave him an order for the seventy-five bushels of cotton seed, directed to the party holding the same for said Haas; but, upon presentation of said order, he failed to get more than 25 bushels of said cotton seed, and hence brought this action for the conversion of the remaining 50 bushels. The court overruled a demurrer to the replication, and the defendant duly excepted.

As shown by the bill of exceptions, the plaintiff introduced evidence as to the bailment with defendant of the cotton from which the 75 bushels of seed were derived, and the defendant refused to deliver the same, upon application therefor, upon the ground that he had a right to retain said cotton seed, under a lien for ginning said cotton, until the price charged by him for the ginning was paid. The plaintiff offered to prove by a colored witness, Sam Bostwick, that one Weil was the agent of defendant, in charge of said gin or mill, superintending and managing the same. Defendant objected to the introduction of this evidence, but the court overruled defendant's objection, and allowed the witness to testify that said Weil was the agent of defendant; that he had charge of the gin, and warehouse connected therewith; that he bought cotton seed; saw to the receipt of cotton to be ginned there, and to the delivery of the same when it had been ginned; and that he seemed to have general charge and management of the entire business. *** Plaintiff offered to prove by said witness Bostwick that in the early part of the year 1884, on a cold, frosty morning, "said Weil sold one bushel of said cotton seed to a countryman for $5." It being admitted that defendant was not present at the time, defendant thereupon objected to this evidence, but the court overruled the objection, and allowed witness to so testify, and to this refusal of the court defendant duly excepted. "This witness also testified that, some time in the fall of 1883, the said Weil ordered a hamper basket and two sacks of said seed to be carried to the home of defendant, and that said seed were put on a dray by witness, and said dray went up town, and towards defendant's house, but the witness was unable to state whether the said basket and the sacks of seed were ever in fact carried to or delivered at said defendant's house." It being admitted that defendant was not present at the time, defendant therefore objected to the introduction of this evidence, or submitting any part thereof to the jury; but the court overruled defendant's objection, and allowed the witness to testify to said facts, and to this action and ruling of the court defendant duly excepted. The plaintiff, as a witness in his own behalf, testified as to the recovery against him in the suit of Haas v. Taylor, and that he had paid the judgment therein; that he received an order from said Haas, directed to Chambers Bros., who occupied and operated the warehouse were said cotton seed was stored, but he "found only twenty-five bushels, which were so badly rotted that he had to throw them in the manure pile;" that shortly thereafter he brought the present suit, first notifying Haas that he had only received from Chambers Bros. 25 bushels, leaving 50 bushels due him.

As further shown by the bill of exceptions, the defendant, as a witness in his own behalf, testified "that he had never authorized said Weil, at any time while he was in defendant's employment, to sell either cotton or cotton seed at the mill, in the warehouse, or elsewhere; and denied most of the essential facts testified to by the witness Bostwick as to the alleged conversion of the seed in question. Thomas H. Watts, Jr., then testified, as a witness for the plaintiff, as to the proceedings in the suit of Haas v. Taylor. His testimony, to portions of which exceptions were duly reserved, tended to support the allegations of the replication filed by the said Taylor, the defendant in the former suit, and the plaintiff in the present action.

This being substantially all the evidence, the plaintiff requested the following charge, which was in writing: "(1) The...