Weil v. Ponder

• Decision Date: 23 June 1900
• Parties: WEIL ET AL. v. PONDER.
• Court: Alabama Supreme Court

28 So. 656

127 Ala. 296

WEIL ET AL. v. PONDER.

Supreme Court of Alabama

June 23, 1900

Appeal from circuit court, Lee county; N. D. Denson, Judge.

Action of trover by B. F. Ponder against Weil Bros. From a judgment in favor of plaintiff, and an order overruling demurrers to the complaint, defendants appeal. Reversed.

The only question presented for review on the present appeal arose upon the rulings of the trial court upon the pleadings. The complaint as filed contained four counts. The first and third counts were substantially in the statutory form for an action of trover. The second count, after claiming damages for that the plaintiff had bought from certain named parties several bales of cotton, specifically described, then averred as follows: "When plaintiff bought the said several bales of cotton as alleged, at said times, he received from the said several parties the warehouse receipts for same. Said receipts were afterwards stolen from plaintiff's possession, and came into the possession of defendants, and were appropriated by them, and the cotton which the said receipts represented was gotten by defendants, and by them converted to their own use. Plaintiff has repeatedly demanded of defendants payment for said cotton, and defendants have refused to pay for same." The fourth count, after claiming damages, averred that the plaintiff bought from certain named parties several bales of cotton, specifically described, for which warehouse receipts were issued to the said named parties from whom the plaintiff purchased said cotton, and then averred as follows: "The said warehouse receipts were issued, respectively, in the name of said vendors. Plaintiff avers that he paid the full value of said cotton at the time of the purchase, and the receipts were delivered to him by the parties as he bought the cotton; that said receipts were stolen from him afterwards; and that the defendants took said cotton, sold it, and shipped it out of the state, and have appropriated the same to their own use. Plaintiff has demanded of the defendants said cotton, and they refused to deliver the same, to the plaintiff's damage as aforesaid." To the second count the defendants demurred upon the following grounds: (1) It does not aver ownership of the cotton in the plaintiff or that it was property of the plaintiff; (2) said count does not show that the cotton was ever delivered to plaintiff; (3) said count does not aver or show that plaintiff either owned or had possession of the cotton alleged to have been converted; (4) it is not alleged that the cotton receipts were ever indorsed to plaintiff. To the fourth count the defendants demurred upon the following grounds: (1) It does not show that the property alleged to have been converted by plaintiff was the property of plaintiff; (2) it does not aver ownership in plaintiff; (3) it does not allege or show that the cotton was ever delivered to plaintiff; (4) it does not show or aver that the cotton receipts were indorsed to plaintiff. These demurrers were overruled, and the defendants duly excepted to such ruling. Upon issue joined upon the plea of not guilty there was judgment rendered in favor of the plaintiff. The defendants appeal, and assign as error the overruling by the court of the demurrers interposed to the complaint.

Barnes & Duke, for appellants.

TYSON J.

Counts 2 and 4 do not aver that the person to whom it is alleged the warehouse receipts were issued, and from whom the plaintiff purchased the cotton, were the owners of the cotton. Nor is it otherwise averred that the plaintiff was the owner of it. Those grounds of demurrer interposed to these counts, that they do not show title to the property alleged to have been converted, should have been sustained.

A majority of the court hold the opinion that an indorsement of the receipts was not necessary to transfer title to the cotton by the vendors to the plaintiff. In this I cannot concur. It will be observed that there is no averment of property in plaintiff other than such as he acquired by a delivery of the receipts. It may be conceded that independent of any statute regulating their transfer, the weight of authority seems to be that a delivery of the warehouse receipt will pass the title to the property which it...