McCullars v. Harkness

• Decision Date: 04 February 1897
• Citation: 113 Ala. 250,21 So. 472
• Parties: MCCULLARS v. HARKNESS.
• Court: Alabama Supreme Court

21 So. 472

113 Ala. 250

MCCULLARS v. HARKNESS.

Supreme Court of Alabama

February 4, 1897

Appeal from circuit court, Walker county; John C. Carmichael Special Judge.

Action by Eli S. Harkness against A. M. McCullars. Judgment for plaintiff, and defendant appeals. Reversed.

This was an action of trespass de bonis asportatis, brought by the appellee, Eli S. Harkness, against the appellant, A. M McCullars, to recover damages for the defendant unlawfully taking from the possession of the plaintiff, without his consent and against his protest, certain personal property. The defendant pleaded the general issue, and by special plea set up that, before the time of the alleged wrong complained of, the plaintiff executed to one F. O. Burdirk a mortgage on the property described in the complaint, which said mortgage had been transferred and assigned before the alleged commission of the wrong complained of; and that in said mortgage the mortgagee or his assignee was authorized, in the event of default in the payment of the mortgage debt, to take possession of the property; and that, default having been made in the payment of said debt, the defendant took the property under the power contained in the mortgage. The plaintiff filed the following replications to the special plea: (1) He denies that defendant has had and owned the mortgage in said plea described. (2) He says he had paid said alleged mortgage in full before the alleged trespass. Trial was had upon issue joined upon the pleas of the general issue and plaintiff's replications to defendant's special plea. The evidence for the plaintiff tended to show that on November 1, 1895, the defendant, through his agent, took the property described in the complaint from the possession of the plaintiff, against his protest and objection. The defendant introduced evidence tending to prove the facts averred in his special plea, and testified that the property was taken after the default in the payment of the mortgage debt by the plaintiff, which debt and mortgage had been assigned by Burdirk to the plaintiff before such taking. In rebuttal the plaintiff introduced evidence tending to show that this mortgage had been paid by the performance of work and labor by the plaintiff for the defendant under an agreement with the defendant that the amount due the plaintiff for such work should go to the payment of the mortgage indebtedness. The plaintiff then introduced in evidence an account for $129.18, which the plaintiff testified was the amount the defendant was owing him; and that the whole of this account, except $17.71, was for work and labor done by the plaintiff for the defendant; that this $17.71 was the proceeds of some cotton which the defendant had sold for the plaintiff, and had never accounted to him for it. The defendant introduced in evidence the records and papers of an attachment suit brought by him against the plaintiff in the justice of the peace court for the collection of advances made, amounting to $82, and proved that in said case in the justice court the plaintiff in this suit set off the account for $129.18, and that in the justice suit the present defendant, who was there plaintiff, had judgment, and the case was pending at the time of the trial of this case in the circuit court, on appeal taken by the plaintiff. As a part of its oral charge the court instructed the jury as follows: "That the burden of proof is first upon the plaintiff to make out his case as set out in the complaint, and then the burden of proof devolves upon the defendant in this suit to establish his special plea." To the giving of so much of this charge that said, "Then the burden of proof devolves upon the defendant in this suit to establish his special plea," the defendant then and there duly excepted. At the request of the plaintiff, the court gave to the jury the following written charges: (1) "The court charges the jury that the record of the suit by McCullars against Harkness does not estop Harkness from using enough of the account used by him in that suit as a payment of the mortgage debt if the jury further find from the evidence that the parties of this suit agreed that the same should or might be so used." (2) "If by agreement of the parties the mortgage debt was paid before the suit was brought in the justice court (the record of which is in evidence in this case),then the mere fact, if it be a fact, that Harkness pleaded the same account in defense of said justice trial which he has introduced in this case would not have the effect to validate the mortgage which had been paid." (3) "If you believe from the evidence that the agreement was that plaintiff's work and labor for defendant should be first applied to the mortgage debt and the balance of the proceeds of such work...