Stephens v. Head

• Decision Date: 26 November 1903
• Citation: 138 Ala. 455,35 So. 565
• Parties: STEPHENS v. HEAD.
• Court: Alabama Supreme Court

35 So. 565

138 Ala. 455

STEPHENS v. HEAD.

Supreme Court of Alabama

November 26, 1903

Appeal from Circuit Court, Cleburne County; John Pelham, Judge.

Action by John D. Head against William A. Stephens. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

See 24 So. 738.

The complaint contained two counts. The first count was in trover, and sought to recover damages for the alleged conversion by the defendant of 204 pairs of shoes, the property of the plaintiff. The second count was in trespass and sought to recover damages for the wrongful taking by the defendant of the said shoes. The defendant pleaded the general issue and several special pleas, setting up the fact that the property described in the complaint and alleged to have been taken by him was taken by him, as sheriff, under and by virtue of the levy of an execution in his hands which was issued upon a judgment recovered by J. J. Stagner against J. F. Willoughby, and that said property so levied upon was in a storehouse which had been occupied by Willoughby. The defendant also pleaded the following special plea: "(5) That he took possession of the goods and chattels in the complaint described, as sheriff of Cleburne county, Alabama for the purpose of selling them in his official capacity, and applying the proceeds of such sale to the satisfaction, so far as the same would extend, of a judgment then existing in the circuit court of said county in favor of J. M. Stagner and against J. F. Willoughby, for the sum of two hundred and ninety and 50/100 dollars; that, at the time he took possession thereof, plaintiff was present, in person or by his agent, and knew of defendant's seizure thereof, and the purpose of defendant in making such seizure, and afterwards, and before said goods were removed from the house where they were when seized, plaintiff had actual knowledge of the seizure thereof by defendant, and that at the time of said seizure said goods were in the house which had been used by said J. F. Willoughby as a storehouse, and that until within a day or two before the seizure thereof by defendant said J. F. Willoughby had occupied said house as a storehouse, and had been in the actual possession of said goods, using and selling therefrom as his own, and claiming the same as his own, with plaintiff's knowledge; that defendant seized and held the same as the property of said J F. Willoughby with plaintiff's knowledge, as hereinabove shown, and sold the same as sheriff, and applied the proceeds of the sale thereof, so far as same would extend, to the satisfaction of the judgment hereinabove named; and that plaintiff never did, at any time prior to the filing of this suit, give him (defendant) any notice that he (plaintiff) claimed the title to, or any interest in, said goods. And defendant says plaintiff is now estopped to claim the damages for the recovery of which this action is brought." The plaintiff demurred to plea numbered 5 upon the following grounds: "(1) That it does not appear from said plea that the defendant had any authority of law to seize and sell the property sued for, for the purpose of satisfying the judgment mentioned in said plea; (2) that said plea is no answer to said complaint; (3) that it does not appear that plaintiff was under any obligation to notify the defendant of his ownership of the goods seized by the defendant." This demurrer was sustained, and thereupon the defendant amended plea No. 5 by inserting after the words in the first part of the plea, "that he took possession of the goods and chattels in the complaint described, as sheriff of Cleburne county, Alabama," the following words "under an execution issued out of the circuit court of Cleburne county." To plea No. 5, as amended, the plaintiff demurred upon the same grounds of demurrer which were interposed to the plea as originally filed, and upon the additional grounds "(1) that the execution mentioned in said plea is not set out at length, nor is sufficient description thereof given in said plea; (2) that it does not appear from said plea that the defendant seized and sold the property mentioned in the complaint under a valid execution." This demurrer was sustained. Thereupon the defendant filed the following plea: "No. 5a. And for further answer to the complaint says that he took possession of goods and chattels in the complaint described, as sheriff of Cleburne county, Alabama, under an execution issued out of the circuit court of said county on 29th day of October 1896, in favor of J. J. Stagner, plaintiff, vs. J. F. Willoughby et al., defendants, for the sum of two hundred and ninety and 50/100 dollars, which said execution came into his hands on the 29th day of October, 1896, for the purpose of selling them in his official capacity, and applying the proceeds of such sale to the satisfaction, so far as the same would extend, of a judgment then existing in the circuit court of said county in favor of J. J. Stagner and against J. F. Willoughby, for the sum of two hundred and ninety 50/100 dollars; that, at the time he took possession thereof, plaintiff was present, in person or by his agent, and knew of defendant's seizure thereof under said execution, and the purpose of defendant in making such seizure, and afterwards, and before said goods were removed from the house where they were when seized as aforesaid, plaintiff had actual knowledge of the seizure thereof by defendant, and that at the time of said seizure said goods were in the house which had been used by J. F. Willoughby as a storehouse, and that, until within a day or two before the seizure thereof by defendant, said J. F. Willoughby had occupied said house as a storehouse, and had been in the actual possession of said goods, using and selling therefrom as his own, and claiming the same as his own, with plaintiff's knowledge; that defendant seized and held the same under said execution as the property of said J. F. Willoughby with plaintiff's knowledge, as hereinabove shown, and sold the same, as sheriff, under said execution, and applied the proceeds of the sale thereof, so far as same would extend, to the satisfaction of the judgment hereinabove named, and the plaintiff never did at any time prior to the filing of said suit give him (defendant) any notice that he (plaintiff) claimed the title to, or any interest in, said goods. And defendant says plaintiff is now estopped to claim the damages for the recovery of which this action is brought." Issue was joined upon the pleas numbered 1, 2, 3, 4, and 5a.

On the trial of the cause the plaintiff introduced in evidence a contract whereby he consigned the shoes involved in this suit to J. F. Willoughby; it being expressly stipulated in said contract that the title to said goods was to remain in said John D. Head, and the said Willoughby was authorized to sell the same, and account to said Head for $1,339. It was further stipulated in said contract that the proceeds of said sale should be applied by said Willoughby to the payment of $1,013 due from Head to one M. B. Wellborn, which indebtedness was evidenced by promissory notes, and were secured by a mortgage. Attached to this contract between Head and Willoughby was a written consent of Wellborn thereto. The defendant objected to the introduction in evidence of said contract upon the ground that it was illegal, irrelevant, and inadmissible. The court overruled the objection, and the defendant duly excepted. There was also introduced in evidence, against the objection and exception of the defendant, a separate contract whereby said Willoughby, in consideration of M. B. Wellborn consenting to the consignment by Head of the stock of merchandise mentioned in the other contract just above mentioned, guarantied the payment of the indebtedness from Head to Wellborn, which...