51 So. 14 | Ala. | 1909
The facts and the law governing this case are sufficiently stated in the former report and opinion of this case . See 148 Ala. 461, 42 South. 560. The pleadings and issues in this case, as was pointed out in the former opinion, are entirely too numerous. All the pleadings and all the proof shown by the records on both appeals, show that the only question in the case is one of conversion. One count in trover is all the pleading necessary to determine all of the rights of
The evidence unquestionably shows that the defendant was a bailee of the property in question, and that it was converted. While the proof is not certain that the plaintiff was the original bailor, it .is uncontradicted that he acquired both the legal and the equitable title thereto before the conversion, and that the bailee refused to deliver on demand after the termination of the bailment, and after information as to the title and ownership of plaintiff. That defendant doubted plaintiff’s title or ownership, and for this reason refused to deliver, may but rebut the presumption of malice which might otherwise arise, but it cannot amount to a complete defense.
Defendant sets up the facts that others claimed the property, and that for this reason he refused to deliver to plaintiff; hut he did not deliver the property to any one who claimed it. He either converted it himself, or allowed others to convert it. If the defendant had been in a position to set up title in a third party to defeat the action, he entirely failed to prove it. He could acquire no light to convert this property to his own use, because he doubted plaintiff’s title, or another claimed it and ordered him not to deliver to plaintiff.
The court erred in refusing charges 5 and 6, requested by appellant. They state correct propositions of law as applicable to the evidence in this case.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
