Wells v. Parker

• Decision Date: 31 May 1917
• Docket Number: 4 Div. 706
• Citation: 75 So. 914,200 Ala. 166
• Parties: WELLS v. PARKER.
• Court: Alabama Supreme Court

75 So. 914

200 Ala. 166

WELLS v. PARKER.

4 Div. 706

Supreme Court of Alabama

May 31, 1917

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action by J.R. Parker against W.E. Wells. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

F.M Gaines, of Dothan, for appellant.

Hill &amp Thigpen, of Dothan, for appellee.

McCLELLAN J.

Originally this action was detinue, brought by a mortgagee (appellee) against the defendant (appellant), to recover two bales of cotton bought by the defendant from the plaintiff's mortgagor. It originated in a justice's court. In the circuit court a count in trover appears to have been added to the complaint. The jury returned the following verdict: "We, the jury, find for the plaintiff for the property sued for. We assess the value of the property at $105.80," which was a sum equal to ten cents a pound for the aggregate weight of the two bales. The verdict and judgment are criticized, because the bales were not separately valued, as the statute requires when that is practicable. While there is a slight intimation to the contrary, there is no definite evidence that the grade of the cotton in the two bales were of different classifications. When no such differences are shown by the evidence, the verdict assessing the value of several bales of cotton, property of the same general kind, in solido is not faulty. Townsend v. Brooks, 76 Ala. 308; Downs v. Bailey, 135 Ala. 329, 332, 33 So. 151. No finding of error can be predicated of the verdict and judgment on this account.

According to the provisions of the act approved February 28, 1911 (Gen.Acts 1911, p. 33), the plea of the general issue in a detinue suit operates as an admission by the defendant that he was in possession of the property sued for when the suit was commenced, thus exempting a plaintiff from his former obligation to establish the defendant's possession of the property at that time. Chappell v. Falkner, 11 Ala.App. 382, 66 So. 890. It appears from the bill of exceptions that Pearce, the mortgagor, sold the cotton to Wells, the defendant, and that Wells gave him two checks for the respective amounts of the agreed price of the cotton; these checks, drawn on the First National Bank of Headland, being signed by the Webb Mercantile Company, by Wells. The checks were not shown to have been paid. It was shown by phases of the evidence that Wells told Pearce that he (Wells) would have the money the next day and out of it would pay the checks, the place of the dealing being at Webb, Ala., and not at Headland, Ala.

The defendant complains of several rulings on the admission or rejection of evidence, but those only of such rulings as seem to at all deserve mention will be noted in the opinion. Evidence of efforts on the part of both Pearce and the plaintiff to get the checks paid was admissible, as tending to show, among other things, that the attempted sale of the cotton had not been perfected. During the examination of the defendant, his counsel propounded this question to him "The money has been right there in this bank, and if he will present those checks he can get the money?" The court sustained the plaintiff's objection to the question, no ground being suggested. Such part of this question as called for...