43 So. 144 | Ala. | 1907
This was an action by the appellee against the appellant; one count- being in trover and the other trespass for taking two bales of cotton. The facts are that one Tillman furnished the land and team, and Pratt furnished the labor, to -make a crop, and they were to divide the crop in equal proportions. This, according to our statute, was a contract of hire, under which the. crop belonged to Tillman and Pratt had a lien on it “for the value of the portion of the crop to which he was entitled.” — Code 1896, § 2712. The plaintiffs made advances to said Pratt during the year 1898, and he executed to them an instrument intended to be a mortgage on his interest in said crop. Under section 2712 of the Code of 1896 the contract of hire existed between the parties. What was the effect, then, of the mortgage made by Pratt, Said section provides that “such lien shall have the same force and effect, and shall be enforced, in the same manner, and under the same conditions, and in the same cases as the' lien, in favor of a landlord.”
Under the landlord’s lien statute, as it originally stood, this court held that, as the landlord merely had a lien on the crop of his tenant, which was not the subject of assignment or transfer to another,- he did not have -any title or interest in the -crop which could be the
The testimony that Tillman said he would see the debt paid was admissible, as a circumstance tending to corroborate the testimony of the plaintiff that Tillman did afterwards turn the cotton over to them for the payment of the debt. One of the plaintiffs further testified that after the cotton was ginned, and while it was at the gin, said Pratt told them to go and get the cotton and apply it to their mortgage.' This testimony was objected to by the defendant, and, without more, would be incompetent, as Pratt did not have the title to the cotton and could not authorize the defendant to take it unless he had acquired it from Tillman- But the plaintiff
There are' conflicts in the testimony for the determination of the controversy by the jury. It matters not Avhether the transaction by Avhich the cotton Avas delivered to the plaintiffs created a bailment, or amounted to a sale, although the former seems to be the case.— Sattler v. Hallock, 160 N. Y. 291, 54 N. E. 667, 46 L. R. A. 679, 73 Am. St. Rep. 686. In either case the plaintiffs would be authorized to maintain an action for the taking or conversion of the property. Unquestionably Tillman and Pratt together had a right to dispose of that property in any manner’ that they might choose, and if it was divided and the two bales turned over to Pratt, and by the concurring act of both delivered to the plaintiffs, to be by them sold and appropriated to the payment of their debt, it had passed beyond the control
From what has been said it will appear: (1) That the court did not err in allowing the witness to testify that Tillman said he would see Pratt’s debt paid. (2) There was no error in allowing proof that Tillman told Jordan to go and get the cotton, as that was proper, as tending to show that Tillman had relinquished his right and turned the cotton over to Pratt. (3) Nor was there error in permitting Jordan to testify that, after the cotton had been taken from plaintiffs and placed in defendant’s warehouse, Tillman said to him, “Your two bales of cotton are in the warehouse,” as that was a circumstance going to show that Tillman considered that the property had been turned over to Jordan, as he claims. (4) There was no error in the giving of charge A, on request of the plaintiffs. The fact that .the case was previously tried’ on a different theory could not deprive the plaintiffs of the right to prove anything material to their controversy in this case. No principle of estoppel is shown, as 'the evidence shows the cotton was in the possession' of the 'defendant at the time of the institution of this suit, and has since been sold by his employe.
The only other charge referred to in the brief of appellant is charge 6, requested by the defendant and refused. There was no error in the refusal to give this charge. Although the cotton did belong to Tillman at the time it was ginned, yet it does not follow that the only way in which plaintiffs could have acquired the cotton, or such an interest in it as to entitle them to recover, was by a purchase from Tillman. Tillman may have divided the cotton and paid these two bales over to Pratt, and Pratt may have turned it over to the plaintiffs, with Tillman expressing his consent, by way of giving assurance that he had relinquished all right to it ;and, if these be .the facts, the plaintiffs could recover.
The motion for a new tral was properly overruled. There is no error in the record, and the judgment of the circuit court will be affirmed.
Affirmed.