Milliken v. Maund

• Citation: 20 So. 310,110 Ala. 332
• Parties: MILLIKEN v. MAUND.
• Decision Date: 26 May 1896
• Court: Supreme Court of Alabama

20 So. 310

110 Ala. 332

MILLIKEN v. MAUND.

Supreme Court of Alabama

May 26, 1896

Appeal from circuit court, Henry county; J. M. Carmichael, Judge.

Action of trover by W. T. Maund against W. W. Milliken. There were verdict and judgment for plaintiff, and defendant appeals. Affirmed.

R. H Walker, for appellant.

HEAD J.

Trover by a mortgagee to recover damages for the conversion of a chattel described as "one four-horse wagon, Ross make." It was admitted by the defendant that he had converted a certain wagon belonging to the mortgagor, to which the latter sometimes drove four mules, and which was also called a "lumber dray," but the defense was sought to be made that this vehicle was not the one embraced by the mortgage. It was shown by the evidence that at the time of the execution of the mortgage the mortgagor owned another four-horse wagon, but it appeared, without dispute that this was a Tennessee wagon, or Milburn make. Considering further that the undisputed evidence showed that the vehicle converted by the defendant was pointed out by the mortgagor to the plaintiff, at the time of the execution of the mortgage, as the one to be conveyed by that instrument, there was no other authorized conclusion from the evidence, if believed by the jury, than that the defendant had converted the wagon covered by plaintiff's mortgage. The only other issue developed upon the trial was whether plaintiff's mortgage had or had not been fully paid, and upon this issue the testimony was in conflict. The defendant was therefore not entitled to the general charge. The bill of exceptions shows that defendant requested eight charges (one of them being the general charge), to the refusal of which he reserved but a single, general exception. Without examining the charges seriatim, it is enough to say that, as one of them was objectionable, the exception is unavailing according to the familiar rule which declares that an exception to the refusal of several charges requested together cannot be sustained unless all of them assert correct propositions. Two charges were given at the instance of the plaintiff, and to the giving of both there was likewise a single exception. This exception cannot be sustained unless both charges were erroneous, and this cannot be asserted of them. Indeed, we think both correct. The plaintiff offered evidence, over the objection of appellant that Quaddlebaum, the mortgagor, stated to witnesses that he had given or would give the plaintiff a mortgage to secure his account, to the admission of which the defendant excepted. This was hearsay, and, except for the reason to be stated, would operate to reverse the judgment. It was an undisputed fact at the trial that Quaddlebaum had given plaintiff the mortgage. The instrument was in evidence, and all the witnesses, including the defendant, spoke of it, and of the time of its execution. No issue was raised as to the existence of the mortgage. The only questions were whether it covered the vehicle in dispute, and, if so, whether the mortgage had been paid. The hearsay evidence (and it may be remarked the defendant introduced some of the same sort) was simply redundant and superfluous, having no injurious effect upon the defendant's case. Its admission was error without resultant injury. Dowling v. Blackman, 70 Ala. 303; Tayloe v. Bush, 75 Ala. 432.

This leaves us to consider whether another exception upon the...