S.H. Pope & Co. v. Union Warehouse Co.

• Decision Date: 11 November 1915
• Docket Number: 5 Div. 572
• Citation: 195 Ala. 309,70 So. 159
• Parties: S.H. POPE & CO. v. UNION WAREHOUSE CO.
• Court: Alabama Supreme Court

70 So. 159

195 Ala. 309

S.H. POPE & CO. v. UNION WAREHOUSE CO.

5 Div. 572

Supreme Court of Alabama

November 11, 1915

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action by the Union Warehouse Company against S.H. Pope & Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals, under section 6, Acts of 1911, p 449. Reversed and remanded.

Riddle Ellis & Riddle, of Goodwater, for appellant.

John A Darden, of Goodwater, for appellee.

SOMERVILLE J.

The first count of the complaint claims for the conversion of a bale of cotton which "was received by plaintiff as a warehouseman and which was turned over and delivered to defendants at their instance and request, defendants claiming the bale of cotton to be theirs, when as a matter of fact it was not, but was the property of the Gilliland Mercantile Company, and plaintiff has had to pay the Gilliland Mercantile Company for the said bale of cotton and claim under their title and right."

The second count claims a certain sum as the value of a bale of cotton, with an allegation of the same facts as in the first count, and further that, having paid the rightful owner for the cotton, plaintiff is "subrogated to the right, title, and interest of the Gilliland Mercantile Company."

When a bailee, having chattels belonging severally to different bailors, mistakenly and wrongfully delivers the property of one bailor to another bailor, who mistakenly receives it as his own, and before demand for its restitution converts it in good faith to his own use, such conversion, though wrongful as to the true owner (40 Cyc. 465, C), is not wrongful as to such bailee; and the latter cannot maintain trover therefor ( Hills v. Snell, 104 Mass. 173, 6 Am.Rep. 216, cited in note to Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am.St.Rep. 805; and in 40 Cyc. 463).

In such a case the bailee is himself guilty of a wrongful conversion and liable in trover to the true owner. Ala., etc., Co. v. Kidd, 35 Ala. 209. And the bailee cannot maintain that such reception and use of the chattel by the pseudo-bailor was tortious; for, as said in Hills v. Snell, supra, "he cannot take advantage of his own mistake to convert into a tort that which has been done in good faith in pursuance of authority given by himself," though he might reclaim the property from any one having it in possession, or recover its proceeds from any one who has sold it. See Miller v. Hirschberg (Or.) 37 P. 85.

No doubt, the rule of liability would be otherwise if the bailee were induced to surrender the chattel by some plausible deception practiced upon him by the pseudo-bailor. McWhorter v. Moore, 7 Ga.App. 439, 67 S.E. 115.

In the foregoing discussion we have of course assumed, as is well settled by the authorities, that a bailee-warehouseman has such a property in the chattel bailed as will support an action in his own name, in proper cases, for its wrongful conversion. Montgomery, etc., Co. v. Montgomery, etc., R. Co., 86 Ala. 372, 5 So. 735; 3 R.C.L. 129.

It was not necessary for the trover count, if in Code form, to recite the facts upon which the charge of conversion was founded; but, having done so, the merit of the case made must be tested by the facts recited. We think it is quite clear under the principles of law already stated, that the trover count does not state a cause of action, since, though every fact alleged were proven, no wrongful conversion...