Stamps v. Thomas

62 So. 314 | Ala. Ct. App. | 1913

WALKER, P. J.

The appellant cannot complain of the action of the court in striking his second plea and in sustaining demurrers to his third plea, as under the plea of the generad issue, upon which issue was joined, he had the benefit of the matters of defense set up in those pleas. “In trover, not guilty puts in issue every matter which might be pleaded in bar, except a release.” —Ryan, et al. v. Young, 147 Ala. 660, 41 South. 954; Barrett v. City of Mobile, 129 Ala. 179; 39 South. 36, 87 Am. St. Rep. 54.

If the question asked the plaintiff as to his making a demand on the defendant for the property alleged to have been converted could he regarded as subject to objection on the ground that it called, not for a statement of fact, but for a mere opinion or conclusion of the witness (Barron v. Mobile & Ohio R. Co., 2 Ala. App. 555, 56 South. 862; Shafer v. Hausman, 139 Ala. 237, 35 South. 691; Rosenfield v. Case, 87 Mich. 295, 49 N .W. 630), still it is made plain by the record that the defendant suffered no injury as the result of the overruling of his objection to the question, as the witness’ answer to it was followed by his detailed statement of what he did in that connection, such statement showing the performance of acts unquestionably constituting the malting of demands upon the defendant to pennit the plaintiff to share in the possession of the property.

On the cross-examination of the plaintiff the fact Avas elicited that, before the suit Avas brought, the defendant Avanted or proposed to divide the lot of tools the conversion of an undivided half interest in Avhich the plaintiff alleged. It Avas not improper to permit the plaintiff to be asked on his examination in rebuttal if the defendant had offered to give him the tools. The question called for evidence explanatory of the above-mentioned occurrence brought out on the cross-examination, the ansAArer to it going to sIioav that the defendant’s expressed desire for a division of the tools had not resulted in his offering any of them to the plaintiff, and Avas not inconsistent with an exclusion of the plaintiff from the possession until a division on terms suggested by the defendant might be agreed on. The question was permissible in the examination in rebuttal.

A statement as to tbe value of tbe property alleged to have been converted, made by tbe defendant when testifying in a former trial of tbe case, was provable against him as an admission of a fact pertinent to an issue to be passed on. — Massey v. Fain, 1 Ala. App. 424, 55 South. 936. It is argued that evidence of tbe statement then made by the defendant should have been excluded because that statement was as to the value of the lot of tools as tbe subject of a-sole ownership, while the only inquiry as to value which is pertinent in this case is as to the value of the undivided half interest in that lot of tools which was alleged by the plaintiff to have been converted. This argument assumes that proof of the value of a thing can shed no light in an inquiry as to what a half interest in it is worth. The assumption is unwarranted. It is not doubted that the ascertained value of a thing is one of the data properly to be considered in reaching a conclusion as to the value of a half interest in it. — Zimmerman v. Dunn, 151 Ala. 435, 44 South. 533; The Albert Dumois, 177 U. S. 255, 20 Sup. Ct. 595, 44 L. Ed. 751; 38 Oyc. 2083.

The action of the court in sustaining an objection to a question asked the witness Jones on his cross-examination in reference to the money paid to him by Findlay is not presented for review, as the record does not show that any exception to that ruling was reserved.

It cannot be said that the evidence called for by the question asked the defendant on his cross-examination in reference to the amount of rent he was to get was so palpably illegal and irrelevant as to render the trial court chargeable with error for overruling the general objection made to the question. “A general objection, 'because the same was illegal, irrelevant, and incompetent,’ cannot be sustained, unless the evidence is manifestly illegal and irrelevant, and apparently incapable of being rendered admissible in connection with other evidence.” — Bufford v. Little, 159 Ala. 300, 48 South. 697; Banders v. Knox, 57 Ala. 83. The question objected to immediately followed a statement by the witness as to his renting the shop and his half interest in the tools to one Myles. Evidence had already been introduced tending to prove that prior to the renting spoken of by the witness he had excluded the plaintiff from any participation in the possession and' use of the tools and had been using them himself in the blacksmith business he was carrying on. If it had been a fact, as it might have been, that the defendant rented the shop and the tools separately, a responsive answer to the question would have disclosed the amount to- he paid him as rent for the latter. If that had been such a sum as, in the light of evidence already adduced as to the rental value of a half interest in the tools, would indicate that the defendant was to get compensation for an exclusive use of them, not merely the rental value of a half interest in them, the answer to the question might have had a tendency to weaken the effect of the witness’s claim that he was not exercising dominion over the property in question as the sole .owner of it. In view of the connection in which the question was asked, in the absence of any specific objection to it, it might Avell have been regarded by the court as within the limits of a party’s right to test by cross-examination the accuracy and fairness of a statement made by his adversary. It is not -deemed worth while to say more of the other rulings on objections to evidence which are briefly complained of by the counsel for the appellant than that no prejudicial error is found in either of them.

The following statement will indicate the views of the court in reference to the grounds upon which it is claimed in the argument of the counsel for the ap-pel-lant that the court erred in refusing to give the general affirmative charge asked in his behalf: (1) As to the alleged failure of the evidence to show that the plaintiff had made a demand on the defendant before the suit was brought, it is to he said in the first place that the aspect of the evidence tending to prove that the defendant took possession of the property without the plaintiff’s consent and assumed exclusive dominion over it, denying the right of the plaintiff to participate in the possession of it, supported the averment of a conversion made in the complaint, though there was an absence of evidence of a demand having been made by the plaintiff —a demand before bringing suit not being required in the case of a conversion committed in that manner (Jesse French Piano & Organ Co. v. Johnson, et al. 142 Ala. 419, 37 South. 924; Boutwell, et al. v. Parker & Co., 124 Ala. 341, 27 South. 309); and, in the second place, that there was evidence tending to prove that several times before the suit was brought the plaintiff had demanded of the defendant to be let into possession. (2) In view of the evidence tending to prove that the defendant was exercising an exclusive dominion as above stated at the time of the conversion laid under a videlicit in the complaint, the claim cannot he sustained that in the matter of the time of the conversion there was a fatal variance between the allegations and the proof. (3) The plaintiff’s right to maintain the action is not defeated by the fact that he claims to own only a half interest in the property in question. A part owner of a chattel may maintain trover for the conversion of his interest. — C. W. Zimmerman Mfg. Co. v. Dunn, 151 Ala. 435, 44 South. 533. The. question of the plaintiff’s right under the pleading and evidence in the case to maintain the action against a co-owner of the property was not raised by the defendant’s request of the general affirmative charge in Ms favor, as there was evidence tending to prove that as against the plaintiff: he had already committed a conversion before he acquired. the right as the owner of an interest in the property to share in the possession of it. Besides, it seems that the action may he maintained by one co-owner against another if the latter has excluded the former from participation in the possession and assumed an exclusive dominion over the property in direct denial of or inconsistently with his rights. — Marlowe v. Rogers, 102 Ala. 510, 14 South. 790; 11 Ency. of Pl. & Pr. 766. (4) The absence of evidence of the value of his interest would not have affected plaintiff’s right to maintain the action on proving a conversion as alleged, but only his right to recover substantial damages. If the alleged conversion is proved, the plaintiff is entitled to recover nominal damages, and the general affirmative charge against him cannot properly be given, though he fails to offer any evidence of the value of the thing converted. —Massey v. Fain, 1 Ala. App. 424, 55 South. 936. But, as already has been indicated, evidence of the value of the thing alleged to have been converted was not lacking in this case.

On the issues of fact in the case the evidence was in conflict. Whether or not the plaintiff had made out his case was a question for the jury. It has not been made to appear that the court was in error in refusing to set aside the verdict and grant a new trial.

Affirmed.