130 Ala. 430 | Ala. | 1900
Several questions involved in this case have heretofore been passed on by this court as will appear in the opinion rendered in Fields v. Karter, 121 Ala. 329. Then the -complaint as previously amended, consisted of a -single count which was re-cog-nized as sufficiently stating a cause of action in case. By its averments it is shown in substance that defendant with notice of a mortgage given plaintiff by one Pearsall on certain lands and crops, wrongfully converted cotton equitably covered by the mortgage whereby plaintiff was -deprived of the right to subject the cotton to the mortgage.
A count has been added since the remandment which is likewise sufficient. It is like the first, except that in addition to the averments first made as to the mode in which defendant dealt with the cotton, it is alternatively averred that he “by taking possession of the said cotton and shipping it in his own name from Cullman to Birmingham -deprived the plaintiff of the opportunity of enforcing his said lien,” etc. This -averment as well as the other acts alternatively attributed to the defendant, coupled with the averments that defendant proceeded with notice of plaintiff’s rights and without his consent, show such wrongful interference with the cotton as constitutes a conversion.—Boutwell v. Parker, 124 Ala. 341; Bolling v. Kirby, 90 Ala. 215; Connor v. Allen, 33 Ala. 515. It does, not necessarily follow from such conversion that the plaintiff is entitled to recover the entire value of the cotton. The only damage alleged to have resulted to the plaintiff is the destruction of his lien. The lien was valuable only as a security for the debt, and if the debt was paid or satisfied in whole or
Matters of defense occurring after suit brought are subjects for special pleas.—Evans v. Cincinnati, etc., R. Co., 78 Ala. 341; Dryer v. Lewis, 57 Ala. 551. Such were the defenses attempted under the third and fourth pleas. Those pleas were not frivolous. Whatever amount was saved to the plaintiff by collections from Pearsall or his property cannot be counted as damages and collected again from defendant. The striking out of the last mentioned pleas was error for which the judgment must be reversed. Objection to whatever defects may have inhered in those pleas should have 'been made by demurrer. The striking out of a plea presenting a meritorious defense is not justified by mere defects in its form.—Mahoney v. O’Leary, 34 Ala.
It seems unimportant to discuss the merits of the case further than has been done in the foregoing and on the former appeal, or to pass on questions dependent on evidence and rulings which may assume other forms if the case should be 'tried again.
Reversed and remanded.