Henderson v. Foy

• Decision Date: 27 July 1892
• Citation: 96 Ala. 205,11 So. 441
• Parties: HENDERSON ET AL. v. FOY.
• Court: Alabama Supreme Court

11 So. 441

96 Ala. 205

HENDERSON ET AL. v. FOY.

Supreme Court of Alabama

July 27, 1892

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

Trover by Henderson Bros. against J. E. Foy for the conversion of certain cotton. Judgment for defendant, and plaintiffs appeal. Reversed.

Upon the trial of the case, it was shown that the complainants claimed the cotton under a mortgage which had been executed to them by one G. W. Conner, on January 16, 1890, and which was recorded on the following day in the office of the probate judge. The said mortgage was given on the entire crop to be raised by said Conner during the current year. It was further shown by the plaintiff that, in October or November 1890, the said Conner stored in a warehouse in Louisville Ala., six bales of cotton; that the defendant claimed to hold a mortgage on said cotton which had been executed to him by said Conner, but subsequently to the mortgage executed to Henderson Bros.; and that the defendant Foy went to the place where the cotton was stored, and sold it to one Drewry, the said Conner being present and consenting thereto. Plaintiffs' testimony further tended to show that Drewry the purchaser, paid the purchase price to defendant, and that, at the time of the purchase of the said cotton, Drewry told the defendant that he would not buy the cotton from Conner, but would buy it from him; and that thereupon he sold the cotton to Drewry. The defendant testified in his own behalf that he held a mortgage on the cotton which was an inferior lien to the plaintiffs' mortgage, and that, on going to the place where the cotton was stored, he went with Conner to Drewry, and that Conner offered to sell the cotton to said Drewry. The defendant further testified that Drewry said that he would buy the cotton from Conner if the defendant would consent to it, and that he, the defendant replied that he would consent to it if the money was paid to him; that Drewry then bought the cotton from Conner, paying the defendant a portion of the purchase money, and the other part of it to said Conner. The defendant testified that he consented for Conner to keep the portion of the money paid to him. This being all the evidence in the case, the court gave the following written charge to the jury at the request of the defendant: "If the jury believe, from the evidence that all Mr. Foy had to do with the transaction was to consent for Conner to sell...