48 So. 377 | Ala. | 1908
Plea 2, as originally filed, and as amended after demurrer sustained, sought to invoke, against a recovery by plaintiff in its action for the conversion by defendant of the lumber described in the complaint, in that it was wrongfully delivered by defendant, a common carrier, to the custody of which for transportation to plaintiff it was committed, an estoppel by act or misrepresentation under a custom known to plaintiff and prevailing between these parties in the delivery of lumber consigned to plaintiff at Mobile. The princi
Looking to another trial, to Avhich we must remand, avo have considered the other grounds of the demurrers to these pleas, and are of the opinion that none of them, save those mentioned before, are well taken. The pleas are sufficiently definite in averment of the action alleged to have induced the surrender of the cars, and, if the material alleged to have been converted was then contained in the cars so delivered, and the averments of fact made are sustained to the requisite degree, the plaintiff cannot recover. — Authorities supra.
The complaint alleges the conversion to have been effected on December 6, 1906. The testimony of the witness Bates, tending to sIioav that the cars were delivered on that day, was on objection excluded by the court, evidently upon the sound ground that the testimony was not only hearsay, but that the record, of the contents of which he proposed to speak, Avas the best evidence. The only other testimony touching at all the date of the alleged conversion was that of Shaver, who testified that the car (apparently car No. 242) was received by the Lewis Land & Lumber Company on December 13, 1906,
The judgment is reversed, and the cause is remanded.