People's Savings Bank & Trust Co. v. Huttig Mfg. Co.

• Decision Date: 30 June 1911
• Citation: 55 So. 929,1 Ala.App. 394
• Parties: PEOPLE'S SAVINGS BANK & TRUST CO. v. HUTTIG MFG. CO.
• Court: Alabama Court of Appeals

55 So. 929

1 Ala.App. 394

PEOPLE'S SAVINGS BANK & TRUST CO. v. HUTTIG MFG. CO.

Court of Appeals of Alabama

June 30, 1911

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by the Huttig Manufacturing Company against the People's Savings Bank & Trust Company for conversion. Judgment for plaintiff, and defendant appeals. Affirmed.

A Latady, for appellant.

Allen &amp Bell, for appellee.

PER CURIAM.

This is an action of trover, by the appellee against the appellant for the conversion of certain roofing material described in the complaint. The facts are set out in the special plea (which will be copied in the statement of the case by the reporter), and the bill of exceptions states that it is admitted that said statement of facts is correct.

Under section 6135 of the Code of 1907, a warehouse receipt stands in lieu of the goods, and the transfer of the receipt is the delivery of the possession of the goods. Allen, Bethune &amp Co. v. Maury & Co., 66 Ala. 10, 18; Commercial Bank of Selma v. Hurt, 99 Ala. 130, 134 et seq., 12 So. 568 19 L. R. A. 701, 42 Am. St. Rep. 38; Danforth v. McElroy, 121 Ala. 106, 108, 109, 25 So. 840; Amer. Pig Iron Storage Warrant Co. v. German, Ex'x, et al., 126 Ala. 194, 242, 28 So. 603, 85 Am. St. Rep. 21; Weil Bros. v. Ponder, 127 Ala. 296, 300, 28 So. 656; Merchants' Nat. Bank v. Bales, 148 Ala. 279, 282, 41 So. 516. The original holder of the warehouse receipt, in this case, by virtue thereof, held the possession of the goods which it represented, and each transfer or hypothecation of the receipt operated as a symbolical delivery of the possession of the goods.

"One who buys property must, at his peril, ascertain the ownership, and if he buys of one who has no authority to sell, his taking possession, in denial of the owner's right, is a conversion." 2 Cooley on Torts (3d Ed.) p. 856 et seq., and notes; Marx v. Nelms, 95 Ala. 304, 10 So. 551. "Any distinct act of dominion wrongfully exerted over one's property, in denial of his right, or inconsistent with it, is a conversion." 2 Cooley on Torts (3d Ed.) 859; 2 Jaggard on Torts, p. 724; Bolling v. Kirby & Bro., 90 Ala. 215, 222, 7 So. 914, 24 Am. St. Rep. 789; Fields v. Copeland, 121 Ala. 644, 649, 26 So. 491; Boutwell et al. v. Parker & Co., 124 Ala. 341, 343, 27 So. 309; Woods v. Rose & Co., 135 Ala. 297, 300, 33 So. 41; Hunnicutt v. Higginbotham, 138 Ala. 472, 475, 35 So. 469, 100 Am. St. Rep. 45; Milner & Kettig Co. v. De Loach M. & Mfg. Co., 139 Ala. 645, 651, 36 So. 765, 101 Am. St. Rep. 63; Stafsky v. Southern Railway Co., 143 Ala. 272, 274, 39 So. 132; Henderson v. Foy, 96 Ala. 205, 206, 11 So. 441. Some of the cases refer to the fact that the party adjudged guilty of conversion had knowledge of the rights of the true owner, but this is not necessary to constitute conversion. As stated in the first citation from Cooley on Torts, supra, he buys "at his peril." Milner & Kettig Co. v. De Loach M. & Mfg. Co., 139 Ala. 645, 650, 36 So. 765, 101 Am. St. Rep. 63; 2 Jaggard on Torts, p. 270; Camody v. Portlock, 12 So. 871, 872; Kenney v. Ranney, 96 Mich. 617, 55 N.W. 982, and cases cited.

The necessity for a demand does not exist where the conversion has taken place without regard to the demand, but only where the possession has been under a contract of purchase or otherwise, so that, by reason of the invalidity of the sale, or from some other cause, the party delivering possession has a right to disregard or disaffirm the sale or delivery and demand the goods. In such case the conversion is not established until the demand and refusal. Cent. Railroad & Banking Co. v. Lampley, 76 Ala. 357, 367, 52 Am. Rep. 334; King v. Franklin, 132 Ala. 560, 566, 31 So. 467; Moore v. Monroe Refrig. Co., 128 Ala. 621, 29 So. 447; Strauss & Sons v. Schwab et al., 104 Ala. 669, 672, 16 So. 692; Jesse French Piano & Organ Co. v. Johnston et al., 142 Ala. 419, 421, 37 So. 924. There was no necessity for a demand in this case, as the agreed statement of facts does not show that the goods were delivered under any contract, or sale, or agreement.

The next insistence by the appellant is that the plaintiff, having placed the goods in the hands of J. C. Gould, and thus clothed him with the apparent ownership of the goods, is estopped from claiming the same of one who, in good faith, has purchased the same from said Gould, on the principle that, where one of two innocent parties must suffer loss by the wrong of a third person, he who enabled the third person to commit the wrong must suffer the loss.

It is true that the owner of personal property may, by clothing another with the apparent title or ownership and authority over it, estop himself from claiming the property in the...