60 So. 520 | Ala. Ct. App. | 1912
This suit was brought by the appellee against the appellant for damages for the conversion of certain steers, the property of the appellee. It appears from the evidence that one Sims gave a mortgage to the appellee upon the property described in the complaint, that the defendant is a partnership composed of J. R. Kilgore, frequently referred to in the testimony as “Bob” Kilgore, and John Kilgore; and that Bob Kilgore was the father of John Kilgore. It further appears from the evidence without dispute that Bob Kilgore was seen in possession of the steers described in the complaint after the above mortgage was executed, and that he shipped them out of Walker county, where the mortgage was recorded and where Sims resided, and that they were sold by him. The theory of the appellee is that Sims, who made him the mortgage on the cattle, sold the cattle to appellant, and that appellant sold them and retained the proceeds. The theory of appellant is that appellee took possession of the steers under the mortgage, and that Bob Kilgore, one of the members of the firm of J. R. Kilgore & Son, bought the cattle from appellee. On the subject as to whether Bob Kilgore bought the cattle from appellee the evidence is in sharp dispute. The appellee swore positively that he did not sell the animals to Bob Kilgore. On the other hand, Bob Kilgore swore positively that he bought the animals from the appellee, and on this subject he was corroborated by the mortgagor, Sims. There was evidence in the casé, however, tending to impeach the witness Sims.
In the case of Dearing, Sink & Co. v. Smith & Wright, 4 Ala. 432, the plaintiff’s counsel testified that “he had ahvays understood that Dearing, Sink & Co. Avere partners, hut did not know Avhetker there had been a dissolution of the firm. Mr. Dearing, he had understood, Avas a partner.” In that case the Supreme Court said: “It is, hoAvever, argued that the Avitness does not testify of his own knoAvledge that James H. Dearing was a partner of the house of Dearing, Sink & Co., but merely from general reputation or rumor. We do not so regard his evidence. He says, ‘He understood,’ etc. Now ‘understood’ is the preterit of ‘understand,’ a verb of very extensive signification, and which, among other things, means to learn, or to be informed. When the Avitness says, in effect, that he has learned or been informed that Mr. Dearing Avas a member of the firm, it cannot with propriety be assumed that his information was derived from rumor, but a jury might well infer that he had learned it from an authentic and satisfactory source, even from the party himself; and upon the authority of the eases cited, the court Avould be bound to so intend.” While there is no direct statement of any witness in this case that the partnership of Kilgore & Son Avas engaged in buying and selling cattle, nevertheless as appellee evidently kneAV the members of the partnership, and as it is a matter of common knowledge that people who reside in rural communities and small toAvns usually knoAV, not from mere rumor, but from authentic information, derived from constant association, aaJio are the members of the various partnerships domiciled and do
In addition to the above, the evidence for the defendant tends to show that at or about the time of the alleged conversion of the steers, and at or about the time Bob Kilgore was admittedly in possession of the steers, some' cattle were bought, as the witness Bob Kilgore testified, by Bob Kilgore from Sims. The evidence of Bob Kilgore tends to show that the cattle so bought from Sims did not include the steers in controversy, but it is evident, from all of the testimony of the defendant, that Sims sold either to Bob Kilgore or to the defendant a lot of cattle at or about the time of the alleged conversion, and that at the time of such sale Sims, Rollins, and Pondrán were in possession of the cattle so sold. There was evidence also tending to show that at or about that time Sims, Rollins, and Pondrán took the steers in controversy from the possesion of one Cheatham, who had possession of them for Sims, and carried them off, and, while the witness Sims testifies that he never sold Bob Kilgore or the defendant the steers in controversy, he does testify as follows: “I sold Kilgore & Son a lot of yearlings, but I do not remember how many, five or six I think in all. I sold him, I think, three or four muley cows and four or five yearlings. I sold him one oxen, a little bit of a fellow, that I got from Nix up
It was for the jury to say, in arriving at their conclusions from the disputed evidence in this case, whether the cattle above referred to by Sims in his quoted testimony — and the quoted testimony evidently refers to the same lot of cattle — actually included the steers in controversy, although the witness Sims and another witness claimed that they were not included in the lot. If Bob Kilgore bought the steers from appellee, then the appellee was plainly not entitled to recover. If, however, he bought them from Sims, then the jury were authorized to infer that they were in the bunch of cattle sold by Sims when Rollins and Fondran were present. If the steers in controversy were included in that lot of cattle, then certainly there was evidence that the defendant bought the cattle, because the witness Sims expressly said that he sold a lot of cattle to Kilgore & Son. If Sims sold the steers to J. R. Kilgore & Son— the partnership — then the appellee was entitled to recover, although the partnership of J. R. Kilgore & Son may not have been engaged in the cattle business. A firm of physicians might buy an automobile for the use of the firm in its practice of medicine, and if so, the automobile so purchased would be the property of the firm, and a part of the firm’s assets. A law firm with a country practice might buy a horse and buggy for the use of the partnership, and it would form a part of the firm’s assets.
In other words, if a nontrading partnership actually buys property with the firm’s assets and for the firm’s usé, then such property is the firm’s property, regardless of the question as to the general scope of the partnership’s business.
35 OA
First. That at the time of the alleged conversion Bob Kilgore was in possession of the steers in controversy, and that he carried them away and sold them.
Second. That Bob Kilgore did not obtain the steers from appellee, and that he bought them and carried them away and sold them without the knowledge or consent of appellee.
Third. That at the time Bob Kilgore had knowledge of the fact that appellee held a mortgage on the steers made to him by the witness Sims.
Fourth. That at or about the time of the alleged conversion Sims, Rollins, and Fondran took the steers from Cheatham, who had possession of them for Sims.
Fifth: That Sims, while Rollins and Fondran were present and at or about the time of the alleged conversion, sold a lot of cattle to “J. R. Kilgore & Son.”
Sixth. That the steers came into Bob Kilgore’s possession when “J. R. Kilgore & Son” bought the cattle from Sims wlien Rollins and Fondran were present.
If Bob Kilgore did not buy the cattle from appellee, then he could only have come into possession of them through Sims, and, if he came into their possession through Sims, then the jury had a right to infer that he came into their possession when Sims sold “J. R. Kilgore & Son” the bunch of cattle above referred to. It is true that Sims swears positively that they were not in that lot of cattle, but he also swears that he never
It is to be remembered in weighing the testimony of Sims as to the sale of the steers that he may have been guilty — if he sold the steers — of a violation of the criminal law; that Rollins, who aided him in the sale, if in fact he did aid him, may also have been guilty of a criminal offense; and that Bob Kilgore, if he bought the steers for himself or for his firm from Sims, may, under-some of the tendencies of the evidence, have also been guilty of a crime. In other words, the good faith of Bob Kilgore, Rollins, and Sims in and about the sale of the steers — if Sims sold them — was before the jury, and was to be considered by the jury in passing on the-question as to what, if any, part of the evidence of either of these witnesses should be accepted as the truth. We think that the circumstance that Bob Kilgore was certainly in possession of the steers, coupled with. his. claim that he bought them from appellee — which claim the verdict of the jury clearly shows that they did not accept as true — might well have caused the jury to find that he came into their possession when Sims sold the-cattle to “J. R. Kilgore & Son.” In other words, the jury might well have found — as we think, in fact, they did find — that Sims swore truthfully when he testified that he sold a lot of cattle to J. R. Kilgore & Son, but that he diverged from the truth and testified falsely
The burden was upon appellee to show by evidence, to the reasonable satisfaction of the jury, that the appellant had converted the cattle. When he offered some evidence of that fact, the jury, and not the court, was the forum to determine its sufficiency. If the appellant was not engaged in buying and selling cattle, that fact would probably have been of material service to the jury in settling the issues presented to them. The appellant, although it plainly could-have done so, offered no evidence upon the subject, and, as above stated, we do not think that the verdict of the jury should be disturbed because of the condition of the evidence as to that matter. We are not prepared to say that in rendering a verdict for the appellee the jury did the appellant a palpable wrong.
Only when, after allowing all reasonable presumptions in favor of the. verdict’s correctness, the court is clearly convinced that it is Avrong and unjust, is an appellate court authorized to put the trial court in error for refusing to grant a motion for a neAv trial based upon such grounds. — Cobb v. Malone, 92 Ala. 630, 9 South. 738; B’ham Ry. & E. Co. v. Mason, 144 Ala. 387, 39 South. 590, 6 Ann. Cas. 929; M. & O. R. R. Co. v. Barber, 2 Ala. App. 507, 56 South. 858.
When used other than in pleading, the universal meaning accorded to the phrase seems to be “to render clear, certain, and sure” that which has preceded its use, whether the matter referred to be one of place, time, manner, or an actual existing thing.
The phrase “to wit,” as used in the complaint in this case, was used by the appellee for the purpose of informing his adversary that he did not intend in making his proof as to the time of the alleged conversion to be held strictly to the day named in the complaint as the day on which the conversion took place, but that the conversion occurred on or about that day, and the phrase was effective for that purpose. — 8 Words and Phrases, supra.
The charge of a court to a jury is not pleading, and words which when used in pleading may have a well-defined meaning if used by a court in giving a case in charge to a jury may well be received by the jury as meaning an entirely different thing, and the jury may thereby be misled as to the true meaning of the court. The words “to wit” as used in charge 2, which the appellant requested the court in writing to give to the jury, might have been received by them in the popular sense of that
When the conversion is alleged in the complaint to have occurred on a specific day not qualified by a videlicit, the evidence must reasonably satisfy the jury that the conversion occurred on the specific day named or the variance is fatal. — Williams v. McKissack, 125 Ala. 544, 27 South. 922; Mobile, J. & K. C. R. R. Co. v. Bay Shore Lumber Co., 158 Ala. 622, 48 South. 377,
In the present case the time of the conversion Avas stated under a videlicit, and the trial judge properly charged the jury that the appellee was not strictly confined in making his proof of the day to the 13th day of September, but that the evidence must reasonably satisfy them that the conversion occurred on or about that day. — Blair v. Riddle, 3 Ala. App. 292, 57 South. 382; Corona Coal & Iron Co. v. Bryan, 171 Ala. 86, 54 South. 522.
We find no error in the record, and the judgment of the court below is affirmed.
Affirmed.
Note.- — The foregoing opinion was prepared by Judge de Graeeenried, while- he was a judge of this court, and; is adopted by the court.