Tallassee Falls Mfg. Co. v. First Nat. Bank

• Decision Date: 13 April 1909
• Citation: 159 Ala. 315,49 So. 246
• Parties: TALLASSEE FALLS MFG. CO. v. FIRST NAT. BANK OF ALEXANDER CITY.
• Court: Alabama Supreme Court

49 So. 246

159 Ala. 315

TALLASSEE FALLS MFG. CO. v. FIRST NAT. BANK OF ALEXANDER CITY.

Supreme Court of Alabama

April 13, 1909

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

Action by the First National Bank of Alexander City against the Tallassee Falls Manufacturing Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The second count of the complaint is as follows: "Plaintiff further claims of defendant the sum of $150, for that whereas, the plaintiff held and owned a mortgage executed and delivered to it by W. G. McDaniel, which mortgage covered the entire crop of corn, fodder, cotton, cotton seed, oats wheat, peas, potatoes, and all other agricultural products grown and raised by the said McDaniel during the year 1905 in Elmore county, Ala. And plaintiff avers that said McDaniel did go and raise a crop of cotton in Elmore county during said year; that, after the same was so grown and raised defendant, with full knowledge of the existence of said mortgage, received from said McDaniel four bales of lint cotton of said crop, and converted the same to his own use without the knowledge and consent of the plaintiff." Demurrers were interposed to this count, because it does not allege the date of the alleged conversion.

Defendant's second plea was as follows: "Defendant says that the proceeds of the cotton alleged to have been converted by the defendant was applied to the payment of a lien upon said cotton, which was a prior lien to any lien plaintiff held upon said property." Demurrers were interposed, and sustained, to this plea, because it fails to show whether the lien mentioned therein was held by the defendant or a third party.

J. M. Chilton, Lackey & Bridges, and George A. Sorrell, for appellant.

Bulger & Rylance and P. O. Stevens, for appellee.

DOWDELL C.J.

The second count of the complaint failed to aver the time of the alleged conversion. Form 24, p. 1199, Civ. Code 1907; Mobile, J. & K. C. R. R. Co. v. Bay Shore Lumber Co. (decided at the present term) 48 So. 377; Williams v. McKissack, 125 Ala. 544, 27 So. 922. The demurrer was well taken on this ground, and should have been sustained.

The second plea was indefinite and uncertain in averment as to the ownership of the alleged prior lien, and was therefore open to the demurrer. If the ownership of the lien was in a third person, then the averments of the plea were insufficient,...