| Ala. | Jun 15, 1907
In the original complaint there were two counts, one in trespass and the other in trover; the first, alleging that the defendant, Malone-Pilclier Company, wrongfully took, and the other that it converted, a. mule, the property of plaintiffs. The complaint was amended by adding a count — the third — in case, for destroying plaintiffs’ right to or lien on said mule, and the case ivas tried on this count.
The trial was had on the plea of the general issue; and the court, at the request of defendant, gave the general charge in its favor.
The case is here for review on this charge, and on errors assigned for the rejection of evidence offered by plaintiffs, for the purpose of showing the value of the mule, and also on a question of tender.
The facts, without conflict, showed that plaintiffs, in 1904, placed in the possession of S. E. Pate, for the purpose of working them, two mules, one of which is the subject of this suit, and agreed to sell them to him the following fall, if said Pate was able to pay for them. No amount was agreed on as the purchase price of the mules, if Pate decided to buy them. If, in the fall, he was unable to pay for them, he was to pay a reasonable rent for the time he had them. No trade was ever consummated between plaintiffs and Pate for the mules.
The mules did not suit Pate, and plaintiffs, if such should turn out to he the case, authorized him to trade them for other stock, and, if it became necessary to give hoot, to pay' the difference between the value of the mules traded and those acquired in the trade, and Pate was" authorized by plaintiffs'to execute a mortgage on
The complaint alleges that Pate obtained possession of said mule — the one traded for from defendant — acting for and as the agent of plaintiffs, in exchange for the mule, for the one belonging to plaintiffs and traded to defendant; that said Pate agreed to and bound himself to pay defendant $94.15, the difference in value of the two mules, which sum was evidenced by note and secured by a mortgage on the mule thus acquired in exchange. The note and mortgage were signed, as alleged, and as the evidence shows, by said Pate, in his own name.
The defendant for an alleged default in said mortgage, as is alleged, wrongfully seized and sold said mule, on the 19th of September, 1905, after default in said mortgage, by which plaintiffs’ reversionary interest and right to said mule was wholly lost. It is further alleged that prior to the seizure of said mule by defendant, plaintiffs tendered the entire sum of $94.15, the amount of Pate's mortgage, to defendant, and notified defendant, that said debt was due by plaintiffs and that said mule was their property, but defendant failed and refused to accept the money so tendered and thereafter placed said mule beyond the reach and control of plain
This suit is between Sellers & Co. and the defendant, between whom there were no contract relations in respect to plaintiffs’ mules, and the one acquired by Pate in the trade or swap he made with defendant for the mule in suit. The complaint, as has been seen, alleged that Pate made the trade with defendant as the agent of the plaintiffs, but there is an entire lack of evidence, and it is without conflict, to show that defendant knew anything about the plaintiffs’ interest in and ownership of the mules they let Pate have to work or trade, or that Pate was the agent of and acting for plaintiffs in the transaction. Pate, examined in behalf of plaintiffs, testified, that after trading for said mule, he carried it home and informed plaintiffs of the trade he had made, and plaintiffs delivered this mule to him under the same agreement as was made with reference to the first pair of mules, and he held and worked said mule until it was seized and carried away by defendant; “that he did not inform defendant, at the time of the swap, that he was trading for plaintiffs; that the trade was made with J. G. Owens, who was in the employ of defendant at the time.”
The plaintiffs thus armed Pate to deal Avith this mule as his oaa'u property, and not as the property of plaintiffs. He hal the animal in his possession and was treating it as his own, and Avas doing this A\dth the knoAvledge and consent of plaintiffs, of whose title and interest in the mule, defendant was in ignorance. If any damage came to plaintiffs, on account of the conduct of Pate, it Avas their fault, and not that of defendant. Under the circumstances, plaintiffs have themselves to blame and not defendant, for any injury of AAhich they complain. The title acquired by defendant from Pate
There can be no doubt that Pate was the agent of plaintiffs in this transaction, and that he made the contract for the benefit of his principals, although he did not disclose to defendant, at the time of the trade, that he was acting as their agent. The plaintiffs being the real parties in interest, it Avould make no difference that this agency was unknown and not disclosed to defendant, at the time of Pate’s transaction as agent Avith it, and they were authorized to sue on it in their oavu names. The principal takes the contract, in such case, subject to all the rights and equities available to the other party, as against the agent if he Avere suing.— City of Huntsville v. H. G. Co., 70 Ala. 191; Bell v. Reynolds, 78 Ala. 511" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/bell-v-reynolds-6512289?utm_source=webapp" opinion_id="6512289">78 Ala. 511, 56 Am. Rep. 52; McFadden v. Henderson, 128 Ala. 229, 29 South. 640; Manker v. W. U. Tel. Co., 137 Ala. 294, 34 South. 839.
The count avers that prior to the seizure of said mule by defendant, plaintiffs tendered to the defendant the entire sum due on said mortgage, to-AA’it, $94.15, and defendant failed and refused to accept the money and failed and refused to deliver their mortgage. The proof shoAved, that plaintiffs offered to pay said mortgage and the expenses incident to it, if defendant Avould deliver Tip the mortgage for $94.15, which defendant refused to do unless plaintiff paid the other mortgage of $45.65, also.
Both of these mortgages, executed as stated, on the same day, and payable at the same time, the 15th of September, 1905, contained the provision that they Avere each given the one to secure a debt of $45.65, “as avoII as any other-amount Ave or either of us now o'we or may oaa’o said Malone-Pilcher Company, at or before the pay
The defendant did not refuse to receive the $94.15 tendered, if not required to surrender the mortgage to secure it, good as a security for that debt, as well as for the debt secured by the $45.65 mortgage; but the plaintiffs, in making the tender, required that said mortgage should be surrendered, which they had ho right to do.
What the defendant would owe the plaintiffs ultimately, on this transaction is not now before us. It may he, on the foreclosure of both of said mortgages, according to their terms, if the sum realized amounted to more than Pate’s indebtedness to defendant, the plaintiffs might maintain an action for money had and received, but not, as here, in an action on the case, for the amount
There Avas no error, therefore, in the rulings of the court, refusing to alloAV proof of Avhat the mule sued for Avas Avorth, at the time of the trade Avith defendant, and at the time of the trial.
The giving of the affirmative charge for defendant was without error.
Affirmed.