116 Ala. 590 | Ala. | 1897
The plaintiff, Locke, a grocery merchant in Eufaula,- sold to Lizzie G. Reeves, a married woman, and delivered to her husband and co-defendant, J. H. Reeves, as her agent, sundry articles of merchandise in his line. The goods, which are itemized in the complaint, consisted, in the main, of family supplies such as groceries for food and other daily domestic use and consumption. There were in the list several items of bagging and ties and tobacco. They were all sold with knowledge that they were purchased for consumption, and for that purpose alone. There was no written assent on the part of Mr. Reeves to his wife making the purchases. The goods were consumed according to the
The question is raised by demurrers to replications to pleas, and these demurrers, guided by the decision of ■ this court in Strauss v. Schwab, 104 Ala. 669, seem to assume that such a sale is void, and that the seller may so treat it and reclaim the goods while in existence, and if not surrendered, on demand, and are afterwards converted, maintain trover; but they rely, for defense to the action, upon the proposition that these defendants could not be tort-feasors when the plaintiff placed the goods in their possession, for the sole purpose of consumption in the very manner in which they were consumed, and suffered them there to remain without objection or demand until after they had been so consumed, whereby their return became impossible. As this last proposition is, to our minds, so obviously true, we will say nothing as to the other question (which, we said, the demurrers seem not to raise) except to remark that our decisions touching it appear to be inharmonious, and must stand over for future reconciliation or more definite settlement by the court, whenever it shall become necessary. — Marks v. Cowles, 53 Ala. 499; McAnally v. Heflin, 105 Ala. 525; American Freehold Land Mortgage Co. v. Dykes, 111 Ala. 178 (191); Strauss v. Schwab, 104 Ala. 669.
But, as we have intimated, the defense made by the demurrers is impregnable. The effect of the plaintiff’s contention is, that although he voluntarily delivered these goods to these parties for the express purpose of retention and consumption, thereby manifesting, in the strongest possible manner, his consent to the conversion, yet, when each article was delivered across the counter the possession of it by the defendants became immediately unlawful and tortious ; it became their duty
The circuit court correctly sustained the demurrers to the replications, and its judgment is affirmed.
Affirmed.