Richardson v. Stinson

• Decision Date: 17 April 1924
• Docket Number: 7 Div. 469.
• Parties: RICHARDSON v. STINSON.
• Court: Alabama Supreme Court

100 So. 209

211 Ala. 254

RICHARDSON v. STINSON.

7 Div. 469.

Supreme Court of Alabama

April 17, 1924

Rehearing Denied May 15, 1924.

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Action by S. L. Stinson against J. K. Richardson for destruction of mortgage liens. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, section 6. Affirmed.

Hugh Reed, of Center, for appellant.

C. B Sims, of Center, for appellee.

ANDERSON C.J.

This record presents three cases which involve the same law and facts between the same parties and were consolidated and tried as one case; two of the suits having started in the justice of the peace court and appealed to the circuit court. It is insisted that the defendant's requested charges 1 and 2, the general charge, should have been given, for the reason that the complaint in the third case, that is, the one originally filed in the circuit court, does not state a cause of action. While this count may be subject to demurrer, but which was not interposed, we do not think it fails to state a cause of action whether it be deemed in case or assumpsit. It charges that plaintiff had a lien on the cotton; that defendant, with knowledge of said lien, received and disposed of said cotton, and has failed and refused, after demand, to account to the plaintiff for the proceeds of said sale. Moreover, if this complaint did not state a cause of action the defendant was not entitled to the general charge as to the counts in the other cases, which became a part of the consolidated case, and which are unquestioned, and said charges instruct a finding against the plaintiff as to the entire case.

Nor do we think that the defendant was entitled to the general charge because the plaintiff failed to prove a demand and refusal as averred in the complaint. True, the plaintiff did not prove in exact words an express demand and refusal, but there was ample evidence from which the jury could have inferred a demand and refusal. The plaintiff testified as to seeing the defendant and claiming the cotton, and that the sale price was furnished him by said defendant, and the defendant's witness Pope testified that defendant told him after the first bale had been sold that plaintiff had claimed the cotton.

There was sufficient proof of the execution of the mortgage by Pope to render it prima facie admissible as evidence. The subscribing witness, Howell, testified that Pope could not write, and told him to sign for him, which he did, and Pope made his mark.

There was no error in sustaining the objection to the questions to the plaintiff on cross-examination as to his former practice or custom of slipping notes over a man to catch him or of what he told one Kilgore when he took a note from him like the one in question.

We...