101 So. 655 | Ala. | 1924
The first count for a conversion is in code form, and is not subject to any of the grounds of demurrer. It is of course the law that, where a sufficient general allegation is made in pleading, and it is followed by an unnecessary allegation of details as constituting the cause of action, the merit of the complaint will be tested by the sufficiency of the facts to show a cause of action. B. R., L. P. Co. v. Weathers,
But the facts here so alleged do not contradict or impair the general allegation that the defendant converted the plaintiff'sproperty. On the contrary they show a conveyance of the cotton by the owner to the plaintiff, which imports, prima facie, the transfer of the legal title with the right of possession, and the independent allegation that the mortgage was in the possession of the bank as collateral security does not show that the bank had acquired the legal title to the mortgaged cotton by an appropriate transfer of the mortgage, though such may have been the case. That fact, if material, was defensive matter, and available under the general issue.
The allegation that the amount recovered is to be paid over to the bank in discharge of plaintiff's debt is of course irrelevant surplusage which in no wise affects the merit of the complaint.
It is not necessary in a trover count to allege the value of the property converted, nor the amount of the mortgage debt when the plaintiff's title and right are based upon a mortgage. Each of those factors is material and definitive of the amount of the plaintiff's recovery, but it is a matter of proof and not of pleading.
The above considerations are applicable also to the objections made in the second count.
It is to be observed, however, that the action for money had and received to the use of the plaintiff is equitable in character (Traweek v. Hagler,
We find no error in the rulings of the trial court, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur. *41
