J.S. Carroll Mercantile Co. v. Folmar

• Decision Date: 16 December 1915
• Docket Number: 4 Div. 375
• Citation: 14 Ala.App. 378,70 So. 985
• Parties: J.S. CARROLL MERCANTILE CO. v. FOLMarch
• Court: Alabama Court of Appeals

70 So. 985

14 Ala.App. 378

J.S. CARROLL MERCANTILE CO. v. FOLMarch

4 Div. 375

Court of Appeals of Alabama

December 16, 1915

Appeal from Law Court, Pike County; T.L. Borum, Judge.

Action by W.B. Folmar against the J.S. Carroll Mercantile Company. Judgment for plaintiff, and defendant appeals. Affirmed.

A.B Foster, of Troy, for appellant.

C.C Brannen, of Troy, for appellee.

PELHAM P.J.

This suit was for the conversion of a bale of cotton, and was tried on the issues made under a plea of the general issue.

The evidence showed that during the year 1913 one Miller raised the bale of cotton in controversy in the course of his farming operations; that in January, 1913, Miller executed a mortgage to W.B. Folmar, the appellee (plaintiff below) covering his crop for that year, including the bale in suit which was designated by the marks "J-94." This mortgage was duly recorded in the probate office of the county during the same month, on, to wit, January 16, 1915. Subsequently, in October, 1913, Miller, the mortgagor, who raised the cotton, sold, without the authority of Folmar, the mortgagee, this bale of cotton to the Matthews & Mott Company, who in turn, shortly thereafter, sold it to the J.S. Carroll Mercantile Company, the appellant here and the defendant in the trial court.

The only other evidence necessary to refer to in passing upon the questions presented here is that Miller testified that he had been having dealings with Folmar for about eight years, during which time Folmar had had mortgages on the crops raised by him each year, and that he (Miller) "had habitually sold his cotton to whom, as, and when he saw fit, without consulting the plaintiff [Folmar]," and would pay the proceeds of the cotton sold by him to Folmar. It was without dispute in the evidence that Miller did not pay the proceeds of the bale involved in this suit to Folmar, and Folmar testified, and it is not disputed, that Miller owed him a large balance on the mortgage (several hundred dollars), and that he had never authorized Miller to sell the cotton crop on which he held a mortgage for the year 1913, or any part of it, which included the bale in controversy marked "J-94," that the defendant had purchased from the Matthews & Mott Company and disposed of before suit brought.

The facts in this case are not like those in the case of Brooks v. Greil Bros. Co., 179 Ala. 459, 60 So. 387 where the fiduciary relation of husband and wife entered into consideration, and the plaintiff in that case had armed her husband as her general agent "with full authority to rent the place and collect the rents, and to dispose of said rents for a limited or specific purpose"--it being held in that case (which was a suit by the wife as plaintiff for money had and received to recover of an innocent third party purchaser the price of cotton received...