Winter-Loeb Grocery Co. v. Mutual Warehouse Co.

• Decision Date: 16 April 1912
• Citation: 4 Ala.App. 431,58 So. 807
• Parties: WINTER-LOEB GROCERY CO. v. MUTUAL WAREHOUSE CO.
• Court: Alabama Court of Appeals

58 So. 807

4 Ala.App. 431

WINTER-LOEB GROCERY CO. v. MUTUAL WAREHOUSE CO.

Court of Appeals of Alabama

April 16, 1912

Rehearing Denied May 4, 1912.

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the Winter-Loeb Grocery Company against the Mutual Warehouse Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Steiner Crum & Weil, of Montgomery, for appellant.

Goodwyn & McIntyre, of Montgomery, for appellee.

PELHAM, J.

The three assignments of error in this case go to the conclusions of the trial judge on the evidence, and in rendering a judgment against the appellant and in favor of appellee in the court below. The suit is an action of trover, which was instituted in the trial court by the appellant against the appellee and was tried before the court without a jury, on a plea of the general issue and a special plea of estoppel. The trial court found from the facts adduced upon the trial that the plaintiff was estopped to claim the property as against the defendant, and accordingly rendered judgment for defendant on the issue made under its plea of estoppel.

The plaintiff's title and claim to the property alleged to have been converted by the defendant and the plaintiff's right to recover in this action is based on its right to assert a claim under mortgages held by it and executed by one Battle, who subsequently gave the defendant a mortgage on the same property. The defendant took possession of the property and disposed of it under the subsequent mortgage held by it. No question is raised as to the priority of the mortgages the mortgages given by Battle and held by plaintiff are conceded to have been given prior to the mortgage given by Battle to the defendant. It is not contended but that the plaintiff's testimony made out a prima facie case.

The principal controversy arises on the question of estoppel over the disputed fact of whether or not the defendant, before advancing Battle money on the property to be secured by mortgage, communicated by telephone with the plaintiff and inquired if it held a claim on the property and was informed by plaintiff that it did not. If it be true that the defendant made such inquiry and was informed by the plaintiff that it held no claim on the property and the defendant relied on this statement and was thereby induced to advance Battle the money on the security afforded by mortgaging the property then the plaintiff would be estopped from setting up any claim under the prior mortgages held by it. Chancellor v Law & Edmonds, 148 Ala. 511, 41 So. 514; Ashurst v Ashurst, 119 Ala. 219, 24 So. 760.

The court below, having the opportunity to see the witnesses and hear them testify--an advantage we cannot have--reached the conclusion that the defendant's secretary and treasurer, one McNeil, did have a conversation, as testified to by him, over the telephone, with one of the plaintiff's managers, one Winter, in which, as testified by McNeil, Winter told him in substance and effect that the plaintiff, Winter-Loeb Grocery Company, held no claim whatever on the property in question of Battle, and that Battle could make a good paper so far as the Winter-Loeb Grocery Company was concerned. McNeil, if he did make this inquiry, was no doubt, as shown by the tendencies of the evidence, led to do so in view of the fact that Battle had approached the defendant for a loan or an advancement to enable him to conduct his farming operations for the current year of 1909, and had referred the defendant to the plaintiff as to his credit, etc. The defendant was also aware that Battle up to that time had been trading with and receiving advancements from the plaintiff with which to carry on his business. The tendency of the evidence goes to show that immediately after the conversation testified to by McNeil as having been had with Winter, probably later in the same day, the defendant did advance Battle a considerable sum of money, and took a mortgage on the property in question to secure the debt.

Upon a careful consideration of all of the testimony set out in the bill of exceptions, we are led to the same conclusion on the issue made under the defendant's plea of estoppel as that arrived at by the trial court in passing on the evidence in the trial had before it.

The weight of the evidence does not depend alone on the number of witnesses (Ala. Gt. So. Ry. Co. v. Frazier, 93 Ala 45, 9 So. 303, 30 Am. St. Rep. 28), and while Winter positively denied the conversation over the telephone testified to by the witness McNeil, the witness Battle testified that one Loeb, an officer of the Winter-Loeb Grocery Company, the plaintiff, informed him (Battle) that the plaintiff would not be able to advance him for that year (1909) on account of bad collections, but that if he could get advances elsewhere it would release or waive its claim or mortgage on the personal property involved in this suit if Battle would continue to trade with the plaintiff, who also held a mortgage on valuable real estate consisting of the farm lands owned by Battle. The tendencies of the evidence show that Battle without delay after this conversation applied to the defendant for advances and offered to mortgage the property in question to secure the debt, and represented that the plaintiff would release its claim or mortgage on the property. This conversation testified to by Battle is denied by Loeb, and the conversation testified to by McNeil is denied by Winter; but the testimony of Battle and McNeil and the consequences shown to have immediately followed, whereby the defendant advanced Battle a large sum of money (about $2,400), with this property as security, carries with it a probability in the natural order of things that lends color to its reasonableness and a presumption to its truthfulness. The collateral facts seem to us to strongly bear out the conclusion reached by the trial judge that the conversation testified to by McNeil as having been had with Winter over...