Milner & Kettig Co. v. De Loach Mill Mfg. Co.

• Decision Date: 14 April 1904
• Citation: 139 Ala. 645,36 So. 765
• Parties: MILNER & KETTIG CO. v. DE LOACH MILL MFG. CO.
• Court: Alabama Supreme Court

36 So. 765

139 Ala. 645

MILNER & KETTIG CO. v. DE LOACH MILL MFG. CO.

Supreme Court of Alabama

April 14, 1904

Appeal from City Court of Birmingham; Wm. W. Wilkerson, Judge.

Action by the De Loach Mill Manufacturing Company against the Milner & Kettig Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint as originally filed contained several counts, some of which were in trespass, seeking to recover damages for the wrongful taking by the defendant of an engine and boiler and fixtures, and the others in trover, seeking to recover damages for the alleged conversion by said defendant of the engine, boiler and fixtures.

There were several counts added, in which the plaintiff set out the fact that the property described had been wrongfully levied upon under a writ of attachment sued out by the defendant against one Gross; that at the time the attachment was levied upon said property, it was the property of the plaintiff, and that by reason of the levy of said attachment and the sale thereunder, said property was wholly lost to the plaintiff.

The defendant filed several pleas. Under the opinion on the present appeal, it is unnecessary to set out the twelfth plea. The tenth, eleventh, and thirteenth pleas were in words and figures as follows: "(10) The defendant for further answer to each count of said complaint says it is not guilty.

"(11) The defendant for further answer to said complaint and each count thereof denies each and every allegation thereof."

"(13) The defendant for further answer to the complaint, and each count thereof, says that plaintiff sold said property consisting of an engine and boiler described in the complaint to one F. M. Gross in Atlanta, Ga., in the month of January 1898, and shipped said property from Erie, Pa., to said Gross at Kennedy, Ala., and said property was reshipped to Fayette Ala., and arrived at Fayette, in Fayette county, Ala., on February 24, 1898, and said property remained on the cars until it was attached as hereinafter stated; that on, to wit March 1, 1898, plaintiff entered into a written agreement with said Gross, in which it is stated that said property belonged to said Gross; that said Gross exhibited said agreement to the agent and representative of the defendant and thereby caused defendant to sue out an attachment against said Gross and attach said property as the property of said Gross; that said Gross claimed to own said property from and after its shipment into the state, and offered it for sale as his property, and defendant had no notice of plaintiff's claim to said property. Defendant under said attachment against said Gross became a judgment creditor of said Gross and sold said property under said attachment."

To the several pleas the plaintiff filed, among others, the following replications:

"Fourth. And plaintiff for further answer to each of the pleas of the defendant herein, except those numbered 1, 2, 5, 10 and 11, alleges that all the title notes mentioned in said pleas were surrendered to the said Gross on, to wit, the 18th day of March, 1898, and the said Gross on said date sold, assigned and transferred all his right, title and interest in and to the property mentioned in the complaint to plaintiff, and the same remained upon the cars at Fayette, Alabama, and at the time of said levies said property was wholly the property of plaintiff, and the said Gross had no right, title or interest thereto.

"Fifth. Plaintiff, further replying to the thirteenth plea, and in answer thereto, says that on the 18th day of March, 1898, after said written agreement was entered into, the said Gross sold, assigned and surrendered to plaintiff all his right, title and interest to said property, and the same remained on the cars of the railroad, and the said Gross was not in the possession of it, nor was he the owner thereof, at the time of said levy by defendant."

To the fourth and fifth replications the defendant demurred upon the following grounds: "(1) Because it shows that no notice of said sale back to plaintiff by said Gross was given by plaintiff. (2) Because it shows that no notice was given by change of possession of property from said Gross to plaintiff. (3) Because it is no answer to the estoppel set up in said plea number 13. (4) Because it neither confesses and avoids nor traverses said plea number 13. (5) Because it fails to show any notice to the defendant of sale back by Gross to plaintiff on March 18, 1898. (6) Because it fails to show that delivery of said property was made to plaintiff by said Gross in the sale of March 18, 1898."

The demurrers to the replications were overruled.

The cause was tried upon an agreed statement of facts, the substance of which is sufficiently stated in the opinion. Upon the facts as agreed upon, the court, at the request of the plaintiff, instructed the jury as follows: "If the jury...