Seals v. Edmondson

73 Ala. 295 | Ala. | 1882

STONE, J.

— This is a statutory action for thé recovery of chattels in specie — very like the common law action of detinue. On all questions material to be here inquired into, it is governed by the same rules as those which obtain in the action of detinue. In fact, it is the common law detinue, with some statutory additions. One controlling principle, in this form of action, is, that to maintain it, the plaintiff must have, as against the defendant, a present,.unqualified right to the possession of the chattel, in its pr.esent form. If there be any preliminary act, or condition precedent to be performed, before the unqualified right of possession attaches, then detinue can not be maintained. — 1 Brick. Dig. 572, §§ 6, 8, 9.

The testimony showing the circumstances under which the appellant gathered up and baled the waste cotton, left by the fire, is neither very clear, nor very harmonious. One phase of the testimony, at least, tends to show that appellee, plaintiff below, vras present and cognizant of the services being rendered by appellant in saving the cotton ; that appellant stated he intended to hold the cotton for himself, if he could; and if he could not .hold it under the law, then he would surrender it on being paid for liis labor, trouble and expense in saving and baling it; that appellant and the attorney of the insurance companies, interested in the saving of as much as nine-tenths of all the cotton destroyed by the tire (some 700 bales), agreed to these terms ; that both appellant and the said attorney informed plaintiff— appellee — of this agreement, and that he expressed no objection. The law frequently implies contracts from the conduct of parties. If one perforin useful services and works for another, of a character that is usually charged for, with the knowledge of that other, and he express no dissent, or if he avail himself of the services, then the law implies a promise to pay for such services what they are reasonably worth. And assent is sometimes implied from silence. When the conduct of the parties is ambiguous, or the testimony conflicting, it is always a question for the jury to determine whether or not there was a mutual agreement, or understanding. No matter what of dissent plaintiff may have first expressed, if he finally, while the work was progressing, acquiesced in appellant’s offer, if he made it, that if he, appellant, could not hold the cotton under the law, then he was to be paid for his expense, labor and services .incurred and employed in saving and baling the cotton, this constitutes a contract. On the other hand, if appellee objected to the services tendered and performed by appellant, and did not afterwards expressly or impliedly assent to the terms proposed, if terms were proposed, then there can be no proper finding that there was a contract to pay appellant for his services and expenses. No man, except in specially exceptional cases, can be made another’s debtor against his will. This is a question peculiarly for the jury, under the rules above declared.

If the jury find there was an express or implied agreement, such as is referred to above, then plaintiff, appellee, did not have a present, unconditional right to the four bales of cotton. To give him such right, he must have paid or tendered to the appellant the value of the labor and expense he had bestowed in and about saving and baling the cotton. If, under the rules above, there was no agreement, express or implied, to pay for the labor and expenses, then no payment or tender was necessary. Appellant could not force appellee to become his debtor. If the jury find there was such agreement to pay, express or implied, then plaintiff can not maintain detinue on the proof in this record. He must bring some other action, or show payment or tender before action brought of appellant’s proper charges.

The testimony in this case did not authorize the general charge on its effect. It was neither very clear, nor free from conflict. The objection that the record fails to show the court ' was requested in writing to give this charge, is without merit. We presume the court did its duty and obeyed the statute. — 1 Brick. Dig. 335, §§ 2, 3, 4, 5.

The plaintiff having the lawful possession of the cotton as warehouseman, had such a qualified right to it as that, in the absence of other facts, he could sue and recover against one found in possession of it, and not showing a better title. The fact that appellant owned twelve of the seven hundred and fifty bales that were in the warehouse when it was burned— waste cotton enough to make fourteen bales only being saved —did not of itself tend to prove that any part of the four bales saved-by him contained any of his cotton. The possibilities are too remote, and the chances too uncertain, to be made the basis of judicial action.

Reversed and remanded.