Karter v. Fields, 130 Ala. 430

Karter v. Fields

130 Ala. 430 | Ala. | 1900

SHARPE, J.

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 *435in part from other property held as a like security or from other source, that fact constitutes a defense to the extent the debt was satisfied. The ease is strictly analogous to that of Waite v. Corbin, 109 Ala. 154, where in an action on the case for the conversion of cotton subject to a landlord’s lien, it was said by the court: “A landlord, in actions of this character, cannot recover more than the amount of his demand existing at. the time of the trial; and the defendant, upon appropriate ])leas, has the right to show payment in whole or in part of the landlord’s debt and thereby defeat or reduce pro tanto as the case may be the extent of the recovery.” This defense goes in negation of the claim of damages and when occurring before suit need not be specially pleaded. To prove that a debt held by the plaintiff against a third person was not lost in consequence of a conversion of the security is but to show that damages were prevented. A material averment of the complaint is that the plaintiff was damaged in an amount stated. “The general issue is not guilty and puts in issue all the material averments of the complaint.” — Code, § 3295. The general rule applicable to actions in case is that proof in repression of damages may be made under the general issue. — 2 Green. Ev., § 625; 1 Chi tty Plead. (14th ed.), 490. For this reason and because not guilty was pleaded, it may be that the defendant was not injured by the court’s action in striking out the second plea.

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. *43697; Lankford v. Green, 62 Ala. 314; L. & N. R. Co. v. Brown, 121 Ala. 222; Morgan v. Rhodes, 1 Stew. 70; 16 Ency. Pl. & Pr. 582.

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.