167 So. 793 | Ala. | 1936
The complaint is in two counts for trover.
The evidence being closed, the "defendants made a motion to exclude the testimony, and over the protest of the plaintiff the motion was granted, to which the plaintiff then and there excepted, and thereupon the court discharged the jury and entered up a judgment in favor of the defendants, to which the plaintiff then and there duly reserved an exception."
The granting of the motion to exclude the evidence was without injury, for the evidence did not make a prima facie case. Dorough v. Alabama Great Southern R. Co.,
The two counts were for the conversion of "a check in the sum of Three Thousand and no/100 Dollars ($3,000.00) drawn by the Conrad Banking Company of Great Falls, Montana, or the proceeds thereof, which said check was placed with the Southside Bank, Birmingham, Alabama, on January 15th, 1931, for collection only, the property of the plaintiff."
The general definition of a conversion at law is "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights." Black's Law Dictionary, page 273.
It is held that trover will not lie for the conversion of a promissory note or check after it has been paid or legally discharged. Lowremore v. Berry,
The effect of the decisions is that trover for a check cannot be maintained when it is within the contemplation of the parties that the check be received, handled, and cashed by the defendant, as was done under the evidence. It is not shown, however, under the evidence in this case, that a wrong was done plaintiff in receiving and converting the check into money through its usual banking correspondents, according to the contemplation of the parties. Booker et al. v. Jones' Adm'x,
It would appear that appellant has mistaken its remedy. Rudisill Soil Pipe Co. v. First Nat. Bank of Anniston,
A phase of this transaction is reported in W. E. Herron Motor Co., Inc., v. First Nat. Bank of Birmingham et al.,
The judgment of the circuit court is not infected with reversible error and is therefore affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *321