64 So. 649 | Ala. Ct. App. | 1914
It is contended in the brief of the counsel for the appellant that count 3 of the complaint was subject to demurrer on the grounds suggesting its failure to show a conversion of the plaintiffs property by the defendant. The allegations of that count to the effect that specified goods belonging to the plaintiff and stored with or kept by the defendant for hire were by the latter wrongfully sold or otherwise disposed of sufficiently show that the defendant committed an action-, able conversion by depriving the plaintiff of her personal property by an unauthorized disposition of it.— May v. O’Neal, 125 Ala. 620, 28 South. 12; Baker v. Hutchinson, 147 Ala. 636, 41 South. 809; Barwick v. Rackley, 46 Ala. 402; 38 Cyc. 2026. Count 4 is, if possible, even less subject to the criticism of it which is made in argument.
The appellant could not have been prejudiced by the overruling of the demurrers to special pleas, 5, 7, and 8, as any proper matter of defense set up in those pleas could have been proved under the plea of the general issue. “In trover, not guilty puts in issue every matter which might be pleaded in bar, except a release.”— Stamps v. Thomas, 7 Ala. App. 622, 62 South. 314; Ryan v. Young, 147 Ala. 660, 41 South. 954; Barrett v. City of Mobile, 129 Ala 179, 30 South 36, 87 Am. St. Rep. 54.
Affirmed.