Stamps v. Thomas

• Court: Alabama Court of Appeals
• Writing for the Court: [7 Ala.App. 625] WALKER, P.J.
• Citation: 7 Ala.App. 622,62 So. 314
• Decision Date: 17 April 1913
• Parties: STAMPS v. THOMAS.

62 So. 314

7 Ala.App. 622

STAMPS
v.
THOMAS.

Court of Appeals of Alabama

April 17, 1913

Appeal from Circuit Court, Bibb County; B.M. Miller, Judge.

Action by W.A. Thomas against E.M. Stamps for the conversion of a half interest in a lot of blacksmith tools. Judgment for plaintiff, and defendant appeals. Affirmed. [62 So. 315]

[7 Ala.App. 623] J.T. Fuller, of Centerville, and W.H. Wright, of West Blocton, for appellant.

[7 Ala.App. 624] Lavender & Thompson and H.P. White, all of Centerville, for appellee.

[7 Ala.App. 625] WALKER, P.J.

The appellant cannot complain of the action of the court in striking his second plea and in sustaining demurrers to his third plea, as under the plea of the general issue, upon which issue was joined, he had the benefit of the matters of defense set up in those pleas. "In trover, not guilty puts in issue every matter which might be pleaded in bar, except a release." Ryan et al. v. Young, 147 Ala. 660, 41 So. 954; [7 Ala.App. 626] Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 87 Am.St.Rep. 54.

If the question asked the plaintiff as to his making a demand on the defendant for the property alleged to have been converted could be regarded as subject to objection on the ground that it called, not for a statement of fact, but for a mere opinion or conclusion of the witness (Barron v. Mobile & Ohio R. Co., 2 Ala.App. 555, 56 So. 862; Shafer v. Hausman, 139 Ala. 237, 35 So. 691; Rosenfield v. Case, 87 Mich. 295, 49 N.W. 630), still it is made plain by the record that the defendant suffered no injury as the result of the overruling of his objection to the question, as the witness' answer to it was followed by his detailed statement of what he did in that connection, such statement showing the performance of acts unquestionably constituting the making of demands upon the defendant to permit the plaintiff to share in the possession of the property.

On the cross-examination of the plaintiff the fact was elicited that, before the suit was brought, the defendant wanted or proposed to divide the lot of tools the conversion of an undivided half interest in which the plaintiff alleged. It was not improper to permit the plaintiff to be asked on his examination in rebuttal if the defendant had offered to give him the tools. The question called for evidence explanatory of the above-mentioned occurrence brought out on the cross-examination, the answer to it going to show that the defendant's expressed desire for a division of the tools had not resulted in his offering any of them to the plaintiff, and was not inconsistent with an exclusion of the plaintiff from the possession until a division on terms suggested by the defendant might be agreed on. The question was permissible in the examination in rebuttal.

[7 Ala.App. 627] A statement as to the value of the property alleged to have been converted, made by the defendant when testifying in a former trial of the case, was provable against him as an admission of a fact pertinent to an issue to be passed on. Massey v. Fain, 1 Ala.App. 424, 55 So. 936. It is argued that evidence of the statement then made by the defendant should have been excluded because that statement was as to the value of the lot of tools as the subject of a sole ownership, while the only inquiry as to value which is pertinent in this case is as to the value of the undivided half interest in that lot of tools which was alleged by the plaintiff to have been converted. This argument assumes that proof of...