Terry v. Williams

• Decision Date: 30 June 1906
• Parties: TERRY ET AL. v. WILLIAMS.
• Court: Alabama Supreme Court

41 So. 804

148 Ala. 468

TERRY ET AL. v. WILLIAMS.

Supreme Court of Alabama

June 30, 1906

Appeal from City Court of Bessemer; B. C. Jones, Judge.

"To be officially reported."

Action by Sallie Williams against Will Terry and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This was an action for trespass for taking goods. No question was raised on the pleading. The tendencies of the evidence and the assignments of error are sufficiently set out in the opinion of the court. The defendant requested the following written charges, which were refused: "(1) I charge you gentlemen of the jury, that the burden is on the plaintiff in this case to show that the title to the property is vested in her, and in no other person. (2) I charge you, gentlemen of the jury, that there can be no punitive damages recovered in this case." There was motion for new trial, based upon the refusal of the court to give these charges, and because the verdict was contrary to the evidence and excessive, which motion was overruled. The verdict and judgment was for $75.

Pinkney Scott, for appellants.

W. S Welch, for appellee.

WEAKLEY C.J.

The action is trespass for the wrongful taking of personal property. Before considering the assignments of error that are insisted on, it will be helpful to state the tendencies of the evidence. The plaintiff claimed and testified that one of the defendants (the two being partners) came to her house and without just cause or legal excuse and against her objection forcibly seized and carried away furniture which she had purchased from other parties and for which she had fully paid, while the defendants claimed they had sold her the furniture on credit, reserving title and right to retake possession, without legal process, upon default in payment and, furthermore, that for an admitted default she consented to the taking at the time they reclaimed the furniture. In support of their theory, the defendants offered in evidence a writing purporting to be a lease contract from them to the plaintiff requiring her to make small monthly payments, and authorizing a taking of the furniture upon default. The plaintiff admitted the execution by her of the writing, but testified that it was made to secure a loan upon the furniture from the defendants, who were pawnbrokers as well as dealers in secondhand furniture, which loan she testified had been fully paid; and in support of her claim that she had purchased the furniture from Jeff Clay & Sons, and had paid therefor, she produced divers receipts from that firm for small payments on furniture account, which were admitted in evidence without objection. The conflicting tendencies of the evidence obviously presented a controversy for the decision of the jury, and it was to the jury submitted, whose finding was favorable to the plaintiff. We have only to decide whether any errors intervened, which require the judgment upon the verdict to be reversed. We proceed to a consideration of those assignments of error that counsel for appellants has discussed in his brief:

1. The defendants claiming that plaintiff had fully consented to the removal of the furniture, it was competent to prove in her behalf that at that time she was "sitting in one corner of the house crying." This incident, so natural and probable on the part of a woman if she objected to the taking of her household goods, was a part of the res gestæ, and had an important bearing upon the question of consent vel non, to which issue the court limited the evidence.

2. As supporting plaintiff's contention that the writing introduced by defendants was executed by her to secure a loan of money, it was proper to allow her to prove they were pawnbrokers; that is, persons who loan money. The answers to the...