Vest v. Bond Bros.

• Decision Date: 08 October 1931
• Docket Number: 8 Div. 333.
• Parties: VEST v. BOND BROS.
• Court: Alabama Supreme Court

137 So. 392

223 Ala. 552

VEST v. BOND BROS.

8 Div. 333.

Supreme Court of Alabama

October 8, 1931

Rehearing Denied Nov. 19, 1931.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action in detinue by Bond Brothers against Addie Vest. From a judgment granting plaintiff's motion for a new trial defendant appeals.

Affirmed.

Lynne &amp Lynne, of Decatur, for appellant.

Julian Harris and A. J. Harris, both of Decatur, for appellee.

BOULDIN J.

Bond Brothers sued Addie Vest in detinue for certain lumber. There was verdict for defendant. On motion of plaintiff, a new trial was granted. The appeal is from this order.

Plaintiff relies for recovery on the doctrine of confusion of goods.

It appears in evidence that the plaintiff, owner of a tract of some 405 acres timbered land, engaged E. C. Walker, a sawmill man, to cut and manufacture the timber into cross-ties.

Walker acquired the timber on several neighboring tracts; located a mill at a convenient site, and manufactured the timber from the south end of plaintiff's land along with his own. The sidings, one inch boards, made as a by-product in sawing the ties, constitute, in the main, the lumber in controversy.

The evidence strongly shows these sidings, coming from plaintiff's timber and from Walker's timber, were intermingled and stacked together on the mill yard. Defendant Vest thereafter purchased the whole from Walker, with notice of plaintiff's claim.

Under the ancient civil law, one who intermingled another's goods with his own so that they became inseparable was liable only in damages as for a conversion. But by the common law the owner is not thus shorn of his property, still in being by the wrongful act of another; hence, the rule: Where the owner of goods, intentionally or negligently so mingles them with the goods of another that they become inseparable, the latter not consenting thereto, nor in any way at fault, is entitled to the whole. Burns v. Campbell, 71 Ala. 271; McClendon v. McKissack, 143 Ala. 191, 38 So. 1020; Kinney v. Cullman County Farm Bureau, 217 Ala. 569, 117 So. 189; Alley v. Adams, 44 Ala. 609; Sims v. Glazener, 14 Ala. 695, 48 Am. Dec. 120.

This rule, often severe in application, does not obtain, save perhaps in case of actual intent to defraud, if the substantial rights of both parties may be otherwise attained.

So, if goods of the same kind and value are intermingled, so that the party not at fault may be protected by giving him an aliquot part of the whole, this is the measure of his right. Sims v. Glazener, 14 Ala. 695, 48 Am. Dec. 120; Willard v. Cox, 9 Ala. App. 439, 63 So. 781; 12 C.J. p. 495, § 10; 5 R. C. L. p. 1054, § 8.

In such case, it is the legal right of the party whose goods have been so intermingled by another to peaceably take possession and segregate his aliquot portion. Sims v. Glazener, supra.

It results that he may maintain detinue and recover a quantity of the homogeneous mixture equal to his portion. 5 R. C. L. p. 1056, § 10; 12 C.J. p. 498, § 14; Nashville Lumber Co. v. Barefield, 93 Ark. 353, 124 S.W. 758, 20 Ann. Cas. 968; Rust Land & Lumber Co. v. Isom, 70 Ark. 99, 66 S.W. 434, 91 Am. St. Rep. 68, and note; Note to 101 Am. St. Rep. 924.

It is not a case of tenancy in common, each the owner of an undivided interest in the whole, but of a severable part in an admixture to which the party not at fault is entitled to an exclusive possession.

The case of Reeves v. Reeves, 207 Ala. 362, 92 So. 551, where the major portion of the property involved was held in the usual relation of tenants in common, and Smith v. Rice, 56 Ala. 417, cited in the Reeves Case, are not analogous, and are to be differentiated from the case in hand.

To limit the recovery, however, to a quantity of the common lot equal to that of the party whose goods have been so wrongfully intermingled by another, the quantity of his goods must be ascertainable. If unknown, the burden is on the author of confusion, or those standing in like position, to produce the evidence of quantity which...