51 So. 745 | Ala. | 1910
— This action was originally brought by the appellants against the appellee to recover damages for the conversion of seven bales of cotton. The proof showed that the cotton Avas raised by one HoAvell, and sold by him'to defendant; that plaintiffs held a mortgage on the cotton' executed by said Howell to them; that HoAvell had executed other mortgages on the cotton to other parties, prior to the mortgage of plaintiff; that those prior mortgages Avere transferred and assigned to one Driver before maturity and before the alleged conversion of the cotton; that when a part of the cotton (three or four bales) was picked, and Avhile the remaining part Avas being picked, the transferee of the prior mortgages went to see the mortgagor, to collect his mortgage debts; that the mortgagor told him that he had no money, but had three or four bales of cotton gathered, and would have six bales by the end of the Aveek, and requested Driver, the mortgagee, to take the cotton. Driver replied, “No; you take the cotton, and sell it, and pay me the money.” The mortgagor agreed to this, and did sell the six bales in question to the defendant, and paid the money to Driver, the mortgagee.
The case at bar is not within the rule announced in the cases of Keith v. Ham, 89 Ala. 590, 7 South. 234; Bird v. Womack, 69 Ala. 392; Street v. Sinclair, 71 Ala. 110. The distinction between those cases and this is clearly pointed out and followed in the cases of Belser v. Youngblood, 103 Ala. 545, 15 South. 863, and Beyer v. Fields, 134 Ala. 236, 32 South. 742.
The plaintiff having recovered damages for the remaining bale, he could not have been injured in the result of the trial.
Affirmed.