Hairslip v. Brannum

• Decision Date: 07 December 1916
• Docket Number: 8 Div. 952
• Citation: 73 So. 464,198 Ala. 214
• Parties: HAIRSLIP v. BRANNUM.
• Court: Alabama Supreme Court

73 So. 464

198 Ala. 214

HAIRSLIP v. BRANNUM.

8 Div. 952

Supreme Court of Alabama

December 7, 1916

Appeal from Law and Equity Court, Madison County; J.H. Ballentine Judge.

Assumpsit in trover by J.E. Brannum against J.C. Hairslip. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

David A. Grayson and M.U. Griffin, both of Huntsville, for appellant.

R.E Smith, of Huntsville, for appellee.

McCLELLAN J.

The appellee brought this action against the appellant, and recovered a judgment for $19.66. The complaint contained four counts. The first and second declared, respectively, upon an account due and unpaid and for money had and received by the defendant to plaintiff's use. In legal effect, the third and fourth counts are in trover, for the conversion by defendant of plaintiff's "one-fourth undivided interest in eleven bales of lint cotton and three bales of seed cotton raised by him [plaintiff], his father, J.S Brannum, and Otey Brannum, his brother, on the Joe Whitaker place and Mrs. Clopton's place" in Madison county. The defenses, interposed without discrimination to the complaint as a whole, were: First, the general issue with leave to give in evidence any facts which might be good in bar of the action; second, "that at the time said action was commenced the plaintiff was indebted to him [[defendant] in the sum of $50 due for fertilizer sold to plaintiff, and cotton and cotton seed which were covered by defendant's mortgage which plaintiff converted to his own use." While the latter plea is quite obscure and certainly deficient, it seems to have been intended and to be a plea of recoupment, based upon an indebtedness of the plaintiff to the defendant for fertilizer and upon an unaverred measure of liability to defendant by the plaintiff because of the plaintiff's conversion of cotton and cotton seed which was subject to a mortgage [by whom executed is not averred] to defendant. There was no demurrer questioning the sufficiency of this plea.

From the evidence to summarily indicate only presently important phases of it, these facts appear with fair certainty: That on January 26, 1914, J.S. Brannum and Oda Brannum executed to the defendant a mortgage for $400 on their crops for the year 1914 and succeeding years. The amount secured by this mortgage was taken up through a team and supplies furnished by defendant. On April 30, 1914, J.S. Brannum executed to defendant a like mortgage for $50. On June 17, 1914, J.S. Brannum executed to defendant an instrument in the nature of a mortgage to secure $85 for fertilizer furnished him by defendant. For the year 1914 J.S. Brannum rented 11 to 13 acres of land of the Clopton place and about 17 acres of the Whitaker place. It is asserted by the plaintiff that during "the last days of February or the first of March," 1914, J.S. Brannum made a trade with the plaintiff, his son, whereby the plaintiff was "to work through and through my [J.S. Brannum's] crop and I [J.S. Brannum] was to work through his [[plaintiff's] crop with him, but he [plaintiff] was to have a one-fourth of the crops raised on the Clopton place and on the Whitaker place." It was shown as a part of the agreement between plaintiff and his father that plaintiff (who had himself rented about 4 acres of the Clopton place from Adams) was "to furnish one horse and his labor and pay for his part of the fertilizer"; and the plaintiff was also "to pay his part of the expenses of paying laborers to hoe the crop."

The agreement thus asserted by the plaintiff constituted the plaintiff and his father, J.S. Brannum, tenants in common in the crop raised under that agreement. Haynes Mer. Co. v. Bell, 163 Ala. 326, 50 So. 311; Hendricks v. Clemmons, 147 Ala. 590, 41 So. 306. Whether such an agreement was made in fact, as stated, was, under the evidence, a question requiring the jury's decision.

If the arrangement asserted by plaintiff was made, it was subsequent to J.S. Brannum's execution of the mortgage for $400, and any rights the plaintiff acquired were subsequent and subordinate to the rights of defendant under that mortgage provided the plaintiff had knowledge or notice thereof at the time he made his agreement with J.S. Brannum. Mayer v. Taylor, 69 Ala. 403, 44 Am.Rep. 522. Whether the plaintiff had such knowledge...