Louisville & N.R. Co. v. Walker

• Decision Date: 18 December 1900
• Citation: 128 Ala. 368,30 So. 738
• Court: Alabama Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. WALKER. [1]

30 So. 738

128 Ala. 368

LOUISVILLE & N. R. CO. v. WALKER. ^[1]

Supreme Court of Alabama

December 18, 1900

Appeal from circuit court, Montgomery county; J. C. Richardson Judge.

Action by the Louisville & Nashville Railroad Company against J. L Walker. Judgment for defendant, and plaintiff appeals. Reversed.

This was an action of detinue. The defendant pleaded that he received the property sued for from the plaintiff which was a common carrier, having the same in possession by reason of a receipt of the same for transportation from New Orleans to Montgomery, and that he was required by the plaintiff to pay the freight and other charges incident to transportation before the same was delivered to him. That he paid the sum demanded by plaintiff and that the same had not been returned or offered to be returned to him. By way of replication or new assignment the plaintiff replied that it had not returned said sum because defendant, after having obtained the property by falsely representing that he was the proper party to receive the same, had disposed of a certain portion of said property for a sum in excess of the amount paid for freight and other charges due the plaintiff for transportation. There was a demurrer to this replication, but the same was not disposed of. In this state of the pleadings judgment was rendered against the plaintiff for failing to plead further.

Thos G. & Chas. P. Jones, for appellant.

Gordon Macdonald, for appellee.

HARALSON J.

1. This is the second appeal in this case. When the cause was here before (111 Ala. 233, 20 So. 358), the facts on which it was then determined, briefly stated by the court, were, that "Walker & Pfefferling shipped by the plaintiff as a common carrier, a car load of horses to Montgomery, consigned to themselves. The defendant, appellee, stated to the plaintiff, that he was the assignee of the consignees (Walker & Pfefferling), and in this right claimed that the horses should be delivered to him. The plaintiff informed him of the amount of the costs and charges of transportation, and offered to deliver the horses upon payment of the amount, under the belief that it covered all the charges, and upon such payment the plaintiff delivered to him the horses. Soon afterwards, the plaintiff ascertained that the defendant was not the assignee of the consignees, and was not entitled to the horses, and that there remained an unpaid balance due for the horses, secured by the retention of the title in the consignors, evidenced by the bill of lading,-the horses having been consigned to the shippers. Upon ascertaining the mistake made by the delivery of the horses, the plaintiff demanded the payment of the balance due the shippers, and this being refused, demanded that the horses be returned. The defendant offered to return the horses to the plaintiff, upon being reimbursed the amount paid by him to the plaintiff and charges. This, the plaintiff declined to do; and thereupon the defendant declined to return the horses. Upon the refusal to return the horses, the plaintiff brought its action in detinue [for them]."

The court held (Coleman, J., delivering the opinion), that the plaintiff, as common carrier could not, upon discovering the fraudulent representation of defendant, maintain the action of detinue against him, to recover the possession of the horses, without refunding to him the amount he paid as freight and charges on delivery of the property to him; and a judgment having been rendered in favor of plaintiff below, it was here reversed and the cause remanded.

When the case returned to the circuit court, the plaintiff filed two other replications, showing by the first, what was not shown before, that when plaintiff demanded of defendant the property in suit, the latter had sold and disposed of 13 of said horses and mules, and at the time of plaintiff's demand on him for them, and prior to suit brought, was not able to restore to plaintiff the stock so delivered to him and by the second, that he had disposed of more than half of the same, and had received from such disposition of it, an amount in excess of the sum paid by him to the plaintiff for freight and charges; and this is offered in excuse of plaintiff's conduct in refusing to...