Morrow v. Campbell

• Decision Date: 05 February 1898
• Parties: MORROW v. CAMPBELL, SHERIFF, ET AL.
• Court: Alabama Supreme Court

24 So. 852

118 Ala. 330

MORROW v. CAMPBELL, SHERIFF, ET AL.

Supreme Court of Alabama

February 5, 1898

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

Action by J. P. Morrow, Sr., against C. C. Campbell and the sureties on his official bond as sheriff. From a judgment for defendants, plaintiff appeals. Reversed.

The breaches complained of are (1) that on the 1st day of January, 1895, while acting under color of his said office the said C. C. Campbell wrongfully seized and carried away one stock of goods, wares, merchandise, liquors, and family groceries, then in the Morrow Saloon, at Warrenton, Ala., and the property of the plaintiff; (2) that on said day, while acting under color of his said office, the said C. C Campbell converted to his own use said property. The amount of damage claimed was $1,000. The defendants pleaded the general issue, and a special plea averring that, at the time of the accident complained of, the defendant C. C. Campbell as sheriff, had in his hands several writs of attachment sued out by the several creditors of W. H. Morrow, and that the property was seized under and by virtue of said writs of attachment, and that it was the property of said W. H Morrow. The material facts of the case are sufficiently stated in the opinion.

The evidence showed that, two or three days before plaintiff's purchase, W. H. Morrow sold the mercantile stock to one J. P. Morrow, Jr., a son of plaintiff and brother of W. H., but that plaintiff had nothing to do with the sale to his son of the mercantile stock, and knew nothing of it until after it was made; that he did not know in fact of the sale of the mercantile stock until the morning of the day on which he bought. The plaintiff objected to any evidence of a sale to J. P. Morrow, Jr., on the ground that it was irrelevant, illegal, and immaterial. The court overruled the objection, and plaintiff duly excepted. Against the objection of the plaintiff, the court permitted defendants to show that J. P. Morrow, Jr., had paid only $510 in cash, and given his duebill for $400 more, for the mercantile stock, and that this stock invoiced between $1,100 and $1,200. The plaintiff objected to this evidence, because irrelevant, illegal, and immaterial. The court overruled the objection, and plaintiff excepted. Against the objection of plaintiff, the court permitted defendants to introduce evidence tending to show that J. P. Morrow, Jr., did not have the $510 at the time he bought the mercantile stock. To this evidence plaintiff objected upon the same grounds. The court overruled the objection, and plaintiff excepted. The plaintiff objected to evidence of the details of the sale to J. P. Morrow, Jr., unless it was shown that plaintiff was connected therewith, on the ground that it was illegal irrelevant, and immaterial. The court overruled the objection, and permitted defendants to give evidence tending to show that the sale of the mercantile stock was fraudulent. To this action of the court plaintiff excepted. Against the objection of plaintiff, defendants were permitted to prove that in December, 1893, plaintiff had executed a mortgage to said W. H. Morrow, of which the consideration was stated to be $400, but the consideration was simulated and untrue, and that the mortgage was executed for the purpose of defrauding one Batty in the collection of a debt due him by plaintiff. To this evidence plaintiff objected, because illegal, irrelevant, and immaterial; but the court overruled the objection, and plaintiff excepted. There was some evidence tending to show that the expenditures of plaintiff for the years 1893 and 1894 exceeded his income from all sources, but as to this there was conflict. The court, against the objection of plaintiff, permitted one W. H. Simpson to testify that, on the morning of the day plaintiff purchased, witness called on W. H. Morrow to pay a debt he owed A. D. Simpson & Co., and that Morrow told him he did not have the money; that he then asked Morrow to give his note, but he refused to do that; that plaintiff was not present when this conversation occurred. To this evidence plaintiff objected, because illegal, irrelevant, and immaterial. The court overruled the objection, and plaintiff excepted.

Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that the burden of the proof is upon the defendants to reasonably satisfy the jury from the evidence that a pecuniary benefit or advantage was secured to W. H. Morrow by the transaction between him and the plaintiff." (2) "The court charges the jury that, if they believe the evidence in this case, there was no such interest reserved by W. H. Morrow as will vitiate the transaction between him and the plaintiff."

The defendants requested the court to give to the jury the following written charges: (1) "The court charges the jury that they may look to all the circumstances and facts in evidence in this cause, including the relationship of the parties who participated in the transaction, and from the consideration of such relationship, if any, and the consideration of the fact that plaintiff in December, 1893 gave W. H. Morrow a mortgage on his property for the purpose of covering up his property to keep his creditors off him, and that it was without other consideration, if such be fact; and if the jury find, from these circumstances or facts, if they be facts, and all the other evidence, that the transaction between W. H. Morrow and plaintiff, as to the stock of liquors, was for the purpose of putting the property of W. H. Morrow beyond the reach of his creditors, and not in settlement of an honest, bona fide debt, their verdict should be for the defendants." (2) "If the jury find, from all the evidence in the case, that there was implied or express agreement or understanding between W. H. Morrow and plaintiff that, on any future settlement as to the saloon business, any difference between them would be adjusted, then this was a reservation of a benefit to the seller, which would render the transaction void." (3) "The court charges the jury that if it was in the contemplation of W. H. Morrow and the plaintiff, at the time of the alleged transfer of the stock of goods in the saloon,-there was an understanding or agreement, either express or implied, or an expectation, on the part of both of the parties,-that they would be living together and associating as in the past, by reason of their relationship of father and son, to enable the said plaintiff to better provide for the support of his family and himself, and that it was within the reasonable contemplation of the parties that the said W. H. Morrow should continue to reside with the father as a member of his family, then this was the reservation of a benefit to the seller, which the law forbids, and rendered the transaction null and void." (4) "The court charges the jury that if J. P. Morrow, the plaintiff, was in the employment of W. H. Morrow in conducting a saloon business, under an agreement that he was to have one-half of the profits of the business for the year, and that the plaintiff took about $200 of proceeds of sale of goods in said saloon, and turned it over to the said ...