Hunnicutt v. Higginbotham

• Decision Date: 26 November 1903
• Citation: 35 So. 469,138 Ala. 472
• Parties: HUNNICUTT v. HIGGINBOTHAM.
• Court: Alabama Supreme Court

35 So. 469

138 Ala. 472

HUNNICUTT v. HIGGINBOTHAM.

Supreme Court of Alabama

November 26, 1903

Appeal from Cleburne County Court; T. J. Burton, Judge.

Action by B. Higginbotham against John W. Hunnicutt. From a judgment for plaintiff, defendant appeals. Affirmed.

Smith &amp Smith, for appellant.

McCarty & Merrill, for appellee.

HARALSON J.

The suit is for the conversion by defendant of $282, alleged to be the property of the plaintiff. It seems to be well settled, that trover lies for the conversion of money, where there is an obligation on the part of defendant to return specific coin or notes intrusted to him. Moody v. Keener 7 Port. 218, 231; 26 A. & E. E. Law (1st Ed.) 766. "It may be stated as a general rule, that although an obligation to pay money is ordinarily enforceable by assumpsit or debt, yet trover lies for the conversion of 'earmarked' money or specific money capable of identification, i. e., money in a bag or coins or notes which have been intrusted to defendant's care." 21 Enc. Pl. & Pr. 1020, 1021. "An intermeddling with, or dominion over the property of another, whether by the defendant alone, or in connection with others, which is subversive of the dominion of the true owner, and in denial of his rights, is a conversion." Bolling v Kirby, 90 Ala. 221, 7 So. 917, 24 Am. St. Rep. 789.

It also seems to be well settled on authority, that when the alleged conversion, consists in whole or in part of a sale of the property without the plaintiff's authority and the property has been converted into money or its equivalent, the plaintiff may bring either trover, or, waiving the tort, assumpsit. 21 Enc. Pl. & Pr. 1022.

The proof for the plaintiff tended to show, that the plaintiff, B. Higginbotham, after his intermarriage with his wife in 1894, gave her $180 in $20 gold pieces wrapped up to itself, and $102 in paper money wrapped up to itself, to put away for him in her safe, which she did, and kept it in that condition until she died, when the defendant, who had qualified as her executor, took possession of the money and converted it, refusing on demand of plaintiff to deliver it to him.

The evidence on the part of the defendant tended to show, that the packages of money which were claimed by plaintiff were not found in the safe of his testatrix after her death, and that the money, gold and paper, which was found therein, was commingled with other money and bore no marks by which the money of plaintiff, if he had any in the safe, could be identified and distinguished from any other money of like kind therein.

The case was tried by the court without a jury, and judgment rendered in favor of plaintiff, against defendant for the sum claimed in the complaint. The main question for review seems to be, whether or not the plaintiff ever deposited said sums in the safe of his wife, as his funds, and if so, if the deposit was in packages, separate from other funds of his wife in the safe, so as they could be, and were, identified at the time the defendant took the money in the safe into his custody, and refused to turn the same over on demand to the plaintiff. The plaintiff testified without objection, that defendant took $180 in gold and $102 in greenback or paper money of his from a safe in which he had it. This was the substance of his testimony on the direct examination, which related alone to his ownership of the money. On his cross-examination by defendant, he testified that he had $180 in gold and $102 in greenbacks, that the day after his marriage to Nancy Higginbotham, in 1894, he gave her $180 in gold, in $20 gold pieces which was wrapped up, to be put away in the safe, and a few days before her death, he gave her $102 in paper money to be put in said safe for him, but he did not see her put the paper money in the safe, and that the money he was testifying about, was the money he was claiming in this suit. He further stated that he did not know that the $180 in gold was in a separate package when the safe was opened by defendant, who was the executor of his wife. In rebuttal he testified also, without objection, that his wife had money of her own in the safe, and sometimes lent her money out, but she never loaned his money; that the money when taken by the defendant was in the same condition as when it was put in the safe, and that he had access to the safe all the time, and the money remained in the same condition as at first.

After the plaintiff had thus testified, defendant moved the court "to exclude from its consideration, all the witness had testified to about the ownership of said money in his direct cross, rebutting examination," which motion the court overruled. In this there was no error. He testified to nothing on the direct and rebutting examination which was objected to, and all he stated further, was called out by the defendant himself. Having called out the evidence, if illegal, he could not afterwards move to exclude it. A. O. Ex. Co. v. Ryan, 112 Ala. 344, 20 So. 644; Farron v. N. & C. Co., 109 Ala. 454, 20 So. 303; E. T., V. & G. R. Co. v. Turvaville, 97 Ala. 122, 12 So. 63. Furthermore, the objection went to the exclusion of what the plaintiff had said about his ownership of the...