Stephens v. Head

119 Ala. 511 | Ala. | 1898

COLEMAN, J.

This was an action by appellee, plaintiff, against the sheriff of Cleburne, to recover damages for the seizure and sale of goods and merchandise. To state the facts and tendencies of the facts with which there is no conflict, they are substantially as follows : The plaintiff residing in Anniston let one J. F. Willoughby, who was merchandising in Cleburne county, “have” the goods in controversy, together with other goods. The contract of sale was that the legal title was to remain in the plaintiff, the vendor. These goods were put in the store of Willoughby with his other goods and were sold by him as his own goods, so far as the purchasers and public knew. A short time before the levy the plaintiff sent his agent, one Tomlinson, to Willoughby’s store, whose duty it was, not to interfere with the sale of the goods by Willoughby, but to superintend the collection of the money for his principal, the vendor. His business was not known to the public or the purchasers of the goods from Willoughby. There was a delivery of the goods in controversy by Willoughby to Tomlinson, but they were not removed from the storehouse. The change of possession from Willoughby to Tomlinson was not made known. The sheriff; levied an execution upon these goods as the property of Willoughby, in the presence of Tomlinson, who interposed no objection nor set up any claim to the goods. The goods were packed in a box, and left by the sheriff in the store. The plaintiff himself was notified by Tomlin-son of the levy, and saw the box of goods in the store, and interposed neither claim nor objection. He at no time, either in person or by agent, gave the sheriff any notice of any claim before the sale of the goods by the sheriff, or any other notice, although both he and his. agent knew of the levy and sale of the goods as the property of Willoughby, except by the bringing of the present action of trespass against the sheriff. We have endeavored to state the facts of the case as favorable to the plaintiff as the facts will justify. We do not doubt that the plaintiff was estopped by his own acts from after-wards suing the sheriff, and that defendant Avas entitled to the general charge. The tAvo charges given at the request of the plaintiff asserted correct propositions of Iuav, and although the defendant did not request an affirmative charge, yet construing the charges requested by the. defendant Avifh reference to the Avhole evidence, 'they should have been given.

Reversed and remanded.