Wolff v. Zurga

• Decision Date: 12 October 1933
• Docket Number: 2 Div. 30.
• Citation: 150 So. 144,227 Ala. 370
• Parties: WOLFF v. ZURGA et al.
• Court: Alabama Supreme Court

150 So. 144

227 Ala. 370

WOLFF v. ZURGA et al.

2 Div. 30.

Supreme Court of Alabama

October 12, 1933

Appeal from Circuit Court, Wilcox County; S. C. Godbold, Judge.

Action in trover by Pete Wolff against Anton Zurga and Blaz Ruzic. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals.

Affirmed.

J. D Ratcliffe, of Monroeville, and J. M. Bonner, of Camden, for appellant.

McKinley & McDaniel, of Linden, for appellees.

THOMAS Justice.

The suit was for conversion of staves. The complaint was laid as the time of the conversion under a videlicet, which was alleged to have been committed prior to the commencement of the suit. Corona Coal & Iron Co. v. Bryan, 171 Ala 86, 54 So. 522, Ann. Cas. 1913A, 878; Howton v Mathias, 197 Ala. 457, 461, 73 So. 92; Ballenger v Ballenger, 205 Ala. 596, 88 So. 826; MacArthur Bros. Co. v. Middleton, 200 Ala. 147, 75 So. 895. The staves were shown to have been removed before the suit.

It is decided that the ownership of personal property may be stated as a fact by a witness. Steiner Bros. & Co. v. Tranum, 98 Ala. 315, 13 So. 365; Rasco v. Jefferson, 142 Ala. 705, 38 So. 246; Sovereign Camp, W. O. W., v. Hoomes, 219 Ala. 564, 122 So. 686; Gaston v. McDonald, 220 Ala. 155, 124 So. 208.

The witness Wolff should have been permitted to answer as to his ownership of the staves prior to and at the date of the alleged conversion before the suit. This was cured by the witness finally stating: "I have had business dealings with Anton Zurga. Had some dealings with him in March 1931, at Asahel in Wilcox County, Alabama. That was on March 30th. At that time Louis Wolff and Mr. Sam Lee Jones were present. I told him that he was due me $513.00 for money that I had advanced him to buy timber and pay labor and everything for making 2100 staves which he had on hand; that I would give him 30 days to get up the money and pay me if he failed to do so, I would close him out. Zurga agreed to that. The staves were branded with my brand, 'P.W.' Those were the same staves described in this suit. On April 30th, 1931, I went back to see Zurga, in company with Alex Stewart, my wife's brother. At that time I presented to him a statement in writing showing the amount due me and he said it was all right; that he didn't have the money, and I demanded the staves of him and he delivered them to me. The market value of the staves at that time and place was $500.00, and I credited his account with that amount."

Plaintiff should have been permitted to answer the question, "Zurga was manufacturing staves for you?" It was material and competent as shedding light on the question of the ownership of the staves before the date of the alleged conversion and explained why he said the staves were branded "P.W." It was the contention of plaintiff that he advanced the money to purchase timber to produce staves for him, as a loan to Zurga, and not to cut and manufacture staves in his own right. This effort of plaintiff to prove ownership by his own testimony, in its materiality and competency, is illustrated by the testimony of Zurga that plaintiff had no such ownership; that he bought and manufactured the staves for himself, and not for plaintiff; and that he did not deliver the staves on the railroad's right of way to or for plaintiff. So, also, of the question, "Did you have a final settlement with Zurga then?" Plaintiff had testified he closed Zurga out and credited $500 to his account on April 30, 1931; and was asked further, "Did he surrender (the) possession of the staves to you?" And, "Did you own these staves on June 23, 1931?" To these questions the defendants' objections were sustained and respective exceptions reserved. These questions were competent. However, this was all covered and cured by plaintiff's later answer that he "owned them on June 23, 1931," and that he "saw the staves after April 30, 1931, in the same place where they had been"; that he "saw Zurga and Ruzic in Judge Miller's office in Camden after that time. Zurga said he sold the staves to Ruzic for Three Hundred Dollars. I demanded the staves of Ruzic and he refused to surrender them. After that time I saw Ruzic at the Virginia Hotel in Selma and told him he had bought my staves; he said he would see about it. I made demand for them and he said he could get them. * * * The time I saw Ruzic at the Virginia Hotel was before the other time I saw him. He said if the staves were mine he would give them to me. * * * I did not tell him he could sell the staves. I did tell Zurga while he was making the staves that I would give him $225.00 per thousand for them. The staves were stacked on the railroad right of way. * * * I didn't brand the staves myself, a negro branded them. I didn't see him do it. They were all branded." (Italics supplied.) If this covered the foregoing questions denied to plaintiff, to which exceptions were reserved, there was no prejudicial error. Such is the effect.

To support an action of trover the right of property, special or general, and possession or immediate right of possession, must concur in the plaintiff at the time of the conversion alleged-must have been a wrongful taking or a wrongful detention, or illegal assumption of ownership, or an illegal user or misuser-are the rules that obtain to support such action, and must exist and operate at the time alleged and at the trial. Beall v. Folmar Sons & Co., 122 Ala. 414, 26 So. 1; Moebes v. Garth, 210 Ala. 201, 97 So. 703; Buchmann v. Callahan, 222 Ala. 240, 131 So. 799.

It is settled that where chattels are the subject of the contract of sale and a necessary act is required "to individualize the thing sold," the title does not pass until that has been done, "because the thing sold is not (theretofore) susceptible of identification"; that is, "the property is not specified, and the alleged purchaser can not know or assert which is his." Mobile Savings Bank v. Fry, 69 Ala. 348, 350; Iron City Grain Co. v. Arnold, 215 Ala. 543, 112 So. 123; Warten v. Strane, 82 Ala. 311, 8 So. 231.

The plaintiff did not claim to have acquired title to all of said staves so placed and situated at the time of the alleged conversion. His claim was that he acquired title to 2,100 of the staves contained in the bulk of four or five thousand staves on the railroad's right of way. The 2,100 staves claimed by the plaintiff were not shown to have been separated from the bulk of the staves, either by the plaintiff or by Zurga, except that plaintiff testified that they were individualized or identified by his mark "P. W." The plaintiff does not testify that he otherwise separated the 2,100 staves to which he claimed title, from the mass as

indicated; but testified that all of the staves "were stacked on the railroad right of way"; that he "saw the staves after April 30, 1931, in the same place where they had been," and that they were marked "P.W.," so he was informed; that he did not brand them himself or see them branded. Alex Stewart said the staves were branded "P.W." and Zurga said they were so branded.

Frank Navine, who, as Ruzic's foreman, inspected this lot of staves for the latter, did inspect, of the mass of four or five...