Moebes v. Garth

• Decision Date: 11 October 1923
• Docket Number: 8 Div. 590.
• Citation: 210 Ala. 201,97 So. 703
• Parties: MOEBES v. GARTH.
• Court: Alabama Supreme Court

97 So. 703

210 Ala. 201

MOEBES v. GARTH.

8 Div. 590.

Supreme Court of Alabama

October 11, 1923

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action in trover and on account by Ben Garth against Otto Moebes. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 450. § 6. Reversed and remanded.

Eyster & Eyster, of Albany, for appellant.

Callahan & Harris, of Decatur, for appellee.

MILLER J.

Ben Garth, plaintiff, appellee here, filed this suit against Otto Moebes, defendant and the appellant. There are three counts in the complaint. The first claims damages for the conversion of three bales of lint cotton; the second claims damages for the conversion of four bales of lint cotton; and the third claims $500 by account. The judgment entry recites issue was joined on the general issue, set-off, and recoupment, in short by consent. The jury returned a verdict in favor of plaintiff for $178.12, and from a judgment thereon rendered by the court the defendant prosecutes this appeal.

Ben Garth, the plaintiff, rented from the defendant, Otto Moebes the Fairbanks place, about 80 acres of land and houses on it for the year 1920, and the rent agreed on by them was one-fourth of the cotton, one-third of the corn, and one-third of the hay raised on the place that year.

The evidence indicated that there were made seven or eight bales of cotton on the land by plaintiff. One bale was sold by plaintiff for about $43, and he gave the defendant one-fourth of the proceeds, and two bales were sold by the plaintiff to R. L. Lee at 24 cents per pound, for which the plaintiff received credit with or cash from Lee. The defendant received none of the proceeds of these two bales. The evidence is in conflict as to how much crop was raised on the place. The evidence of plaintiff tended to show he raised about seven bales of cotton, 100 bushels of corn, and no hay. The evidence of defendant tended to show that he raised eight bales of cotton, about 300 bushels of corn, and a few tons of hay. The defendant received no hay on the rent, and from 15 to 25 bushels of corn on the rent.

The evidence is without dispute that the plaintiff delivered to the defendant four bales of cotton of this crop, placed them in the garage of the defendant, and that the plaintiff owed the defendant, for advances to enable him to make the crop about $121, which was a lien on this cotton. These four bales are the ones mentioned in the complaint, and for which plaintiff claims damages for their conversion.

The defendant requested the court to give the general affirmative charge as to counts 1 and 2. These charges were in writing and the court refused to give each of them. One charge read: "If you believe the evidence, you cannot return a verdict for the plaintiff under count 2." The other charge was exactly like it, except that it had "1 and 2," instead of and in place of "2." These counts, one and two, are the ones in which plaintiff claimed damages for the conversion of these bales of lint cotton. Did the court err in refusing to give these two charges to the jury?

The landlord, the defendant, had a lien on the crop raised by his tenant, the plaintiff, on the rented lands for rent for the current year and for advances made to the tenant by the landlord in money or other thing of value for the sustenance or well-being of the tenant or his family, etc., to enable them to make the crop. Code 1907, § 4734; Reynolds v. Hardee, 193 Ala. 454, 69 So. 553.

In Booker v. Jones, 55 Ala. 266, this rule was declared by this court, which was quoted with approval in Beall v. Folmar Sons & Co., 122 Ala. 419, 26 So. 2:

"To support an action of trover, the right of property, general or special, and possession or an immediate right of possession, must concur in the plaintiff at the time of the conversion; and to constitute a conversion, there must be a wrongful taking or a wrongful detention, or an illegal assumption of ownership, or an illegal user or misuser."

This court, in Zimmerman Mfg. Co. v. Dunn, 163 Ala. 274, 50 So. 906, affirmed this rule in this language:

"It has been firmly settled in this court that in the action of trover there must be a concurrence of the right of property, general or special, and of possession, or the immediate right of possession, in the plaintiff at the time of the conversion."

See, also Pinckard v. Cassels, 195 Ala. 353, 357, headnote 4, 70 So. 153, and authorities there cited.

Let us apply the facts as shown by the testimony to this rule of law, and see if there is any evidence tending to show conversion of this cotton by the defendant. The undisputed evidence shows that this cotton was raised by the plaintiff on land rented from the defendant, and the defendant had a lien on the cotton for the balance of the unpaid rent and for the advances made by him to the plaintiff. The plaintiff delivered the possession of the property, this cotton, to the defendant. The plaintiff on this subject testified as follows as to the conversation with the defendant and contract made by them as to this cotton:

"On this occasion I told him I wanted to sell the cotton, and that I was offered 24 cents for that bale, and he says, 'I can't sell mine; it will break me to sell.' I don't know how he said it would break him, but he told me he wanted to hold his, because he believed it would go to 40 cents, and that was in the fall of 1920 when it was worth 24 cents. I told him that I would take 24 cents for mine that morning, that I didn't believe that it would go to 40 cents, and I told him that I would sell him my part, or if he would give me my part I would take it out on the street and sell it, and he says, 'No; you take it down there and put it in my garage and I will hold it awhile;' and I says, 'I tell you what, you have got a fourth interest in the cotton, and I don't want to be noways contrary; but, if you will give me what I can get for cotton now, you can hold it, and you notify me when you sell it and I will come in and we will settle;' and he says, 'All right, take it down and put it in the garage;' and I carried down and put it in there."

This shows plaintiff delivered the cotton to the defendant, parted with the possession of it, and reserved no right...