Kitchens v. Mann

• Decision Date: 12 November 1918
• Docket Number: 7 Div. 470
• Citation: 80 So. 173,16 Ala.App. 599
• Parties: KITCHENS v. MANN.
• Court: Alabama Court of Appeals

80 So. 173

16 Ala.App. 599

KITCHENS v. MANN.

7 Div. 470

Court of Appeals of Alabama

November 12, 1918

Appeal from Circuit Court, Clay County; Marion H. Sims, Judge.

Action by A.P. Mann against W.A. Kitchens in assumpsit and on account. From a judgment for plaintiff, defendant appeals. Affirmed.

The following are the assignments of error referred to in the opinion:

(23) The lower court erred in overruling defendant's objection to the following question to the witness J.W Stewart: "Have you got that with you (referring to a memorandum made by the witness)?"

(24) Witness' answer: "I think I have got it."

(25) Overruling defendant's objection to the following question to Perry Wright: "Let us see what they were did you see them weighed?"

(26) Witness' answer: "Yes, sir."

(27) The lower court erred in overruling defendant's objection to the question of witness Wright in calling off the figures that the witness had made of weights of bales of cotton which were weighed on the scales at plaintiff's warehouse long after this suit commenced.

(28) Overruling defendant's objection to the following question to the witness Wright: "Some of it appeared to have been there on storage a good while."

(29) Witness' answer: "Yes, sir."

(30) Overruling defendant's objection to the following question to the witness Ramsey: "In the spring of 1915 did you go down to the A.P. Mann warehouse with anybody at a time when some cotton was reweighed?"

(31) Overruling defendant's objection to the following question to the same witness: "Let's see some of those weights you drew off; did you put the time down?"

(32) Answer of witness: "March 24, 1915."

(33) Overruling defendant's objection to the following question propounded to witness Gibson: "Did you test any scales at that time used down at the A.P. Mann warehouse?"

(34) Answer of witness: "Yes, sir."

The following charge was given for plaintiff:

(2) The burden of proving to your reasonable satisfaction that plaintiff owes defendant for either one of the bales of cotton numbered 1687 and 3110 is on defendant, and if you are left in a state of uncertainty, after considering all the evidence, whether or not said plaintiff owes said defendant for either of said bales of cotton, you should not render a verdict in favor of plaintiff (defendant) for the bale or bales that you may be in a state of uncertainty about.

The following are the charges refused to defendant:

(2) If you are reasonably satisfied from the evidence in this case that defendant has bale of cotton No. 1687 in the warehouse being run by plaintiff, and that defendant demanded said bale of cotton before the commencement of this suit, and plaintiff refused or failed to deliver to defendant said cotton, and if you are further reasonably satisfied from the evidence that plaintiff has never paid defendant for said cotton, your verdict should be for plaintiff, for whatever you are reasonably satisfied from the evidence said bale of cotton has been worth on the market, since defendant demanded of the plaintiff said bale of cotton.

(6) If you are reasonably satisfied from all the evidence in this case that plaintiff as warehouseman had in his possession a bale of cotton No. 1687, weighing 464 pounds and bale of cotton No. 3110, weighing 400 pounds, before the commencement of this suit, and in the years 1913 and 1914 and that defendant was the owner of said cotton, and held the warehouse receipts for said cotton, and that defendant demanded of plaintiff said bales of cotton before the commencement of this suit, and plaintiff refused or failed to turn over said cotton or deliver same to defendant, then you should find a verdict in favor of defendant for the highest market value in Ashland of the cotton since defendant demanded said cotton, and if the amount so found by you as being the market value of said cotton should exceed plaintiff's demand, you should find a verdict over plaintiff's demand for defendant for such excess as you find defendant's demand exceeds plaintiff's demand, not to exceed $100.

Riddle & Riddle, of Talladega, for appellant.

Cornelius & Vann, of Ashland, for appellee.

SAMFORD J.

The plaintiff, a warehouseman, claims of the defendant an account for storage of cotton. The cause was tried in the court below on the plea of the general issue, in short, etc. Under this plea the defendant sought to show a violation of section 7859 of the Code of 1907; that the plaintiff gave false weights on the receipts issued from his warehouse, and that defendant purchased cotton, evidenced by these receipts, and was thereby damaged to the extent of the shortage in weight; that the plaintiff pulled cotton out of the bales of cotton belonging to the defendant in amounts above the necessity for sampling, and for the conversion of two bales of cotton. All of the questions were contested, evidence pro and con introduced, and submitted to the jury, under a full and fair charge by the court. Where this is the case, the trial court will not be put in error for its action in overruling a motion for a new trial based upon the ground that the verdict of the jury was contrary to the evidence. Denson v. Stanley, 81 South. ---; Cobb v. Malone, 92 Ala. 630, 9 So. 738; Cobb v. Hand, 12 Ala.App. 463, 68 So. 541.

It is true that a warehouseman is liable, in a proper suit, for the delivery of goods to the wrong person. Hudmon Bros. v. Du Bose, 85 Ala. 446, 5 So. 162, 2 L.R.A. 475; Davis & Son v. Hurt, 114 Ala. 146, 21 So. 468. But where the owner of the goods has been paid for them by the party to whom they were delivered, there can be no recovery from the warehouseman by the owner; or where, as in this case as applied to one of the bales of cotton, it is shown to the satisfaction of the jury that no demand was made for the cotton until after suit was brought, the defendant cannot through a plea of set-off or recoupment recover for that bale in this suit. These questions, under the evidence, were properly submitted to the jury.

A motion to exclude the plaintiff's testimony and render judgment in favor of the defendant is not the proper way to test the case as made by the plaintiff's evidence. Although the headnote in Jones v. State, 2 Ala.App 240, 57 So. 62, and some other decisions of this court and of the Supreme Court may appear to be authority for the contention, a ...