Stewart Bros. v. Lindsey

• Decision Date: 05 November 1925
• Docket Number: 8 Div. 793
• Citation: 106 So. 41,213 Ala. 659
• Parties: STEWART BROS. v. LINDSEY.
• Court: Alabama Supreme Court

106 So. 41

213 Ala. 659

STEWART BROS. v. LINDSEY.

8 Div. 793

Supreme Court of Alabama

November 5, 1925

Appeal from Morgan County Court; W.T. Lowe, Judge.

Action in trespass and trover by Stewart Bros. against J.W. Lindsey. From a judgment for defendant, plaintiffs appeal. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed in part; in part reversed and remanded.

Sample & Kilpatrick, of Hartsells, for appellant.

Tennis Tidwell, of Albany, for appellee.

SAYRE J.

Appellants claimed damages for that defendant wrongfully took and, in a separate count, converted two bay mules about ten years old and in separate counts--to the joinder of which there was no objection--that he wrongfully took and converted one bay mule about six years old. There was verdict and judgment for defendant.

As to the two elder mules: Defendant got them in a trade with W.C Orr for two black mules. On February 17, 1919, Orr had mortgaged the two mules in controversy to plaintiffs, and plaintiffs claimed right and title under this mortgage. But on March 27, 1920, after the trade between himself and defendant, Orr had executed another mortgage to plaintiffs covering the indebtedness secured by the former mortgage and something more. In this mortgage the two black mules were included; from it the two bay mules were omitted. Plaintiffs retained the mortgage of February 17, 1919. Defendant contended that with full knowledge of the relevant facts plaintiffs had accepted the mortgage on the black mules in substitution for the two bay mules, the former being worth very much more than the latter. As to this contention the evidence was in conflict, and the issue was properly submitted to the jury for decision. The jury found with the defendant, in effect, that the mortgage under which plaintiffs claimed had been extinguished by the later mortgage which did not include the mules in controversy. It cannot be said that this issue was erroneously submitted to the jury, or that the court erred in overruling plaintiffs' motion for a new trial.

As to the other mule, plaintiffs claimed right and title under a past-due mortgage of date March 20, 1920, executed and delivered to them by John W. Sharpley and W.C. Orr. Defendant claimed and had taken possession of this mule under a prior mortgage from Sharpley which he had foreclosed. Plaintiffs' contention seems to have been that defendant had traded this mule to their...