Baker v. Hutchinson, 41 So. 809

Baker v. Hutchinson

41 So. 809 | Ala. | 1906

WEAKLY, C. J.

Tbe second count of the complaint was not subject to the demurrer interposed. It was sufficiently definite under our liberal rules of pleading, and made a case of liability for tbe destruction of plaintiff’s alleged lien, growing out of tbe mortgage. It was not necessary to allege the evidential facts which would upon tbe trial, be relied on to establish tbe existence of tbe lien. There was no necessity for more specific averments. •

*641The demurrer to the third plea, as amended, was properly sustained. The plea did not allege the facts out of which the fraud was supposed to arise. When fraud is pleaded at law or in equity, the facts out of which it is supposed to arise must he stated. A mere general averment of fraud without such facts' is insufficient. — Reynolds v. Excelsior Coal Co., 100 Ala. 296, 14 South. 573.

The fourth plea did not show that the mortgage relied on by the defendant was prior or superior to that of the plaintiff, and, as the demurrer pointed out this vice, it was properly sustained.

The Afth plea was lacking in averments to show a release of the cotton in question in accordance with the agreement alleged to have been made between the mortgagor, Thomaston, and the plaintiff at the time of the execution of the mortgage, and was defective.

The plaintiff had the right to introduce the mortgage and notes as links in his chain of evidence to support the complaint and to prove how much was clue thereon at the commencement of the suit. Evidence that the sum of $300 was owing on the notes and mortgage shows that the mortgage was supported by consideration. The fact that the wife’s name did not appear on the notes as the mortgage recited would not impair the mortgage as a valid security for the notes as the obligation of the husband.

It is true that no witness stated in so many words that Thomaston owned the lands on which the cotton was grown at the time the mortgage was executed, yet, talcing the date and the recitals of the mortgage in connection with the plaintiff’s testimony that Thomaston lived in 1903 on the place sold him by the plaintiff and grew the cotton on that place, the only rational interpretation to be placed upon the evidence, in the absence of anything to the contrary, is that Thomaston bought the place prior to 1903, ancl that the purchase was made either, prior to or contemporaneous with the execution by him of the mortgage to the plaintiff on December 8, 1902. No just inference could be drawn which would *642authorize a jury to find that the plaintiff took a mortgage upon his own property from Thomaston to secure the latter’s debt.

The plaintiff waived no right to sue in this action by calling on defendant to pay him the amount realized on the cotton. We think that evidence of a conversion by defendant of three bales of cotton, its value per pound being shown, authorized the jury, without proof bi the weight of each bale, to find that plaintiff had sustained more than nominal damages, and hence the charge limiting the recovery to nominal damages, requested by defendant, was rightly refused.

There was no conflict in the evidence, and the circuit court committed no error in giving the affirmative charge for the plaintiff.

Affirmed.

Tyson, Simpson, and Anderson, JJ., concur.