Kinney v. Cullman County Farm Bureau
| Decision Date | 24 May 1928 |
| Docket Number | 6 Div. 70 |
| Citation | 217 Ala. 569,117 So. 189 |
| Parties | KINNEY v. CULLMAN COUNTY FARM BUREAU. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cullman County; James E. Horton, Judge.
Action for conversion by the Cullman County Farm Bureau against E.C Kinney. From a judgment for plaintiff, defendant appeals. Affirmed.
F.E St. John and A.A. Griffith, both of Cullman, and Erle Pettus of Birmingham, for appellant.
S.A Lynne, of Decatur, for appellee.
The farm bureau sued Kinney for the value of 33 tons of nitrate of soda converted by defendant. Defendant testified that he had bought the soda in good faith from a third person. Carothers, the third person in question, in whose warehouse the soda was stored at the time of the alleged conversion, denied that he had intended to sell plaintiff's soda to defendant, and testified that he had sold only some other fertilizer of his own which was in the same warehouse, and that defendant had carted away plaintiff's soda without his knowledge or consent. But this difference between defendant and Carothers was immaterial; for, although defendant bought for a valuable consideration, in good faith, and without notice of any infirmity in his vendor's title, he got no better title than his vendor had. Bennett v. Brooks, 146 Ala. 490, 41 So. 149; Barrow v. Brent, 202 Ala. 650, 81 So. 669.
The real defense was that plaintiff had caused an intermingling of its soda with other fertilizing material in the warehouse, the property of Carothers, so that its property was incapable of identification and separation, wherefore the whole mass became the property of Carothers, and, through Carothers, vested in defendant. It will be conceded that, if by reason of plaintiff's willful wrong or culpable negligence its property became mingled in an indistinguishable mass with that of defendant or defendant's vendor, the entire property belonged to defendant or his vendor whose property right was thus invaded. But, if he consented to the confusion no change of property right followed. And, if the goods could be distinguished and separated, no change in property right takes place. Alley v. Adams, 44 Ala. 609; Burns v. Campbell, 71 Ala. 271, 288; McClendon v. McKissack, 143 Ala. 188, 38 So. 1020; Baer v. Mobile Cooperage Co., 159 Ala. 491, 504, 49 So. 92; 12 C.J. p. 491, § 3 et seq. Judge Story, Bailments (8th Ed.) § 40, deduces from the authorities the rule which appellant would apply in this case:
"If the mixture is undistinguishable, and a new ingredient is formed, not capable of a just appreciation and division, according to the original rights of each, then the party who occasions the wrongful mixture must bear the whole loss."
Nothing to the contrary of any of these authorities was said in Dickens v. Dickens, 174 Ala. 345, 56 So. 806, to which appellant refers. So of Lehman, Durr & Co. v. Kelly, 68 Ala. 192, and Leader v. Romano, 208 Ala. 635, 95 So. 7.
The trial court, having these rules of law in mind, gave the general affirmative charge for the plaintiff. In the evidence there appeared two good reasons why error cannot be imputed to that action. The evidence showed without contradiction that a large part at least of the soda stored by plaintiff in the warehouse, whence defendant claimed to have purchased it had not lost its identity; and, in the second place, what confusion of plaintiff's soda with other fertilizers in the warehouse there may have been was not brought about by any willful wrong or culpable negligence on the part...
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