62 So. 537 | Ala. Ct. App. | 1913
— The appellee, the Huntsville Lumber Company, brought this suit against Olifton O. Rolfe and Percy M. Rolfe, partners composing the firm of Rolfe Bros., for damages for the conversion of certain logs and certain money, Avhich the complaint alleges Avas at the time of the conversion the property of appellee. The complaint contains nine counts. The first four counts allege the Avrongful conversion by the appellants of certain logs, the property of the appellee, and the last five the Avrongful conversion by the appellants of certain money, the proceeds of certain logs or lumber, the property of the appellee. The case was tried upon the plea of - the general issue, and there was a jury and a verdict for the defendants. Thereupon the plaintiff (appellee here) moved the court to set aside the verdict of the jury, upon the ground, among others, that the verdict of the jury was against the great weight of the evidence. The court granted the motion and set aside the verdict and the judgment pronounced thereon, and the defendants (appellants here) appeal.
1. It appears from the evidence that the appellee is engaged in the sawmill business at Decatur, Ala., and that in the year 1906 it made two contracts with appellants, whereby appellants bound themselves to deliver logs to appellee, and upon the faith of Avhich con
At the time the above contract was made the logs above contracted to be delivered were probably standing as trees in Lawrence county, and it is evident that no title by virtue of the above contract alone passed to. the appellee. After the above contract was made, appellants appear to have begun to place, in accordance with the terms of the contract, logs at the above-mentioned place on West Flint creek. About December 15, 1906, they had placed there 4 red oak logs, 23 white oak logs, and 42 poplar logs, aggregating 23,965 feet, and 4 ash logs, aggregating 539 feet. These logs were on said December 15th measured or scaled by one Ward, an agent of appellee, and he placed on each log an encircled “W,” which was the mark by which appellee distinguished its logs from other logs. Appellants seem to have continued after December 15th to place logs at said place, for on January 29, 1907, appellee’s agent, Ward, again went to said place and again scaled or measured other logs as follows: 6 white oak logs, 1,890 feet; 11 red oak logs, 4,011 feet; 17 ash logs, 3,813 feet; and 24 poplar logs 7,346 feet. He at that time branded each log so measured or scaled with appellee’s encircled “W,” and according to the testimony of Ward the total value of the two lots of logs, including the ash logs, so measured or scaled was $415. This witness testified that “there was no agreement made between me and the defendants, or either of them, either in December, 1906, or in January, 1907, at the time I scaled the logs, with reference to the purchase or sale of them.
In Joyce v. Adams, 8 N. Y. 291, it is said that “it is a general rule of law that when a contract is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot take them away without paying the price. But if anything remains to be done on the part of the seller as between him and the buyer, such as weighing, measuring, or counting out of a common parcel, before the goods purchased are to be- delivered, until that is done, the right of property has not attached in the buyer.” See, also, John Martin v. Henry Hurlbut, 9 Minn. 142 (Gil. 132).
“The question of transfer to and vesting of title in the purchaser always involves a question of the intention of the contracting parties; and it is to be ascertained whether their negotiations and acts are evincive of an intention on the part of the seller to relinquish all further claim or control as owner, and on the part of the buyer to assume such control with its consequent liabil-itiesA — Bethel Steam Mill Co. v. Brown, 57 Me. 9, 99 Am. Dec. 752.
It is possible that the facts in this case show that appellants were willing to relinquish all claim or control over the logs as their owners when the scalings by Ward took place, hut all the evidence discloses that the ap-pellee was not only unwilling to, but that it did not, assume control at any time of said logs as owner thereof with the liabilities of such owner. On the contrary, all the evidence shows that appellee looked to the appellants to deliver the logs as provided in the contract, and that at no time did it regard itself as liable to appellants for their value. All the acts of the parties con
“Every agreement for a subsequent delivery is essentially executory. * * * The distinction between a sale which transfers the ownership and an agreement to sell and deliver at a day certain, which gives but an action for the breach of it, is a broad one.” — Strong, Deemer & Co., Limited, v. Dinning, 175 Pa. 586, 34 Atl. 919.
It has ever been the rule in this state that to sustain an action of trover the plaintiff must have at the time of the alleged conversion a general or special property in the chattel and either the actual possession of the chattel or the right of immediate possession. — Tallassee Falls Mfg. Co. v. Alexander City First Nat. Bank, 159 Ala. 315, 49 South. 246.
[The foregoing portion of this opinion was prepared by Judge de Graffenried, and was adopted by this court after he became a member of the Supreme Court.]
The appellee had, as pointed out and shown therein, no general property or title to the logs. The only remaining question then, is: Did it have such a special interest or title in or to them as would support this action? We are of opinion that it did. We think the facts, without conflict, are such as to show that the ap-pellee had a lien upon the logs, to the extent of the money it had advanced the appellants upon them, secured by an implied pledge of the logs.
A pledge may be defined to be “a transfer of personal property as a security for a debt or other obligation” (31 Cyc. 785), or “a bailment of personal property by a debtor to his creditor, to be kept by him until his debt is discharged” (22 Am. & Eng. Ency. Law, 842). “The
The present case in this particular is even stronger than that. Here the logs were placed by defendants on the banks of West Flint creek — the place of delivery fixed by the original contract — and they were there scaled by plaintiff’s inspector and each given plaintiff’s mark of an encircled “W.” While it is true, as
Assuming all of this to be true, while it is inconsistent with a general title in plaintiff as purchaser, it is not inconsistent, but, on tbe contrary, entirely consistent, with a special title in plaintiff as pledgee, held as security for tbe money it bad advanced.
Its interest was to this extent and this extent only, and it itself, as pledgee, bad tbe right upon tbe maturity of its demand — a reasonable time from tbe making of
The witness Bixby, a sawmill man, and the purchaser from defendants of some of the logs, testified: “Prior to my purchase of the logs, I had gone to Lawrence county and examined them. Mr. Rolfe (one of the defendants) told me that it was plaintiff that had had the logs branded, and I requested him to get a written release from plaintiff. He told me that the plaintiff wouldn’t give a written release, but that plaintiff had told him to go ahead and sell them. I telephoned plaintiff, and it told me it would be all right to buy the logs, so I bought them.” The plaintiff denies that it authorized a sale of the logs; but, even if it did authorize it, it would not defeat its right to recover under those counts of the complaint which are predicated upon a conversion by defendant of the proceeds of the sale, unless it was also its intention thereby to waive its right to the proceeds, though it would defeat its right to recover under those counts which are based upon a conversion by defendants of the logs themselves.
The pledgee, by virtue of his possession and special title in the property, can support trover or detinue against any one who wrongfully disturbs that possession, or converts the property, be he the pledgor or some
We discover no error in the action of the trial court in setting aside the judgment in favor of the defendants and in awarding the plaintiff a new trial, and this judgment is affirmed.
Affirmed.