111 Ala. 233 | Ala. | 1895
This is an action of detinue,instituted by the appellee railroad to recover certain horses. The plaintiff’s right of action grows out of the following state of facts : Walker & Pfefferling shipped by the plaintiff as a common carrier, a car load of horses to Montgomery, consigned to themselves. The defendant, appellant, stated to the plaintiff that he was the assignee of the consignee, and in this right claimed that the horses should be delivered to him. The plaintiff informed him of the amount .of the cost and charges of transportation, and offered to deliver the horses upoD payment of the amount, under the belief that it covered all charges, and upon such payment the plaintiff delivered to him the horses. Soon afterwards, the plaintiff ascertained that defendant was not the assignee of the consignee, and was not entitled to the horses, and that there remained an unpaid balance due for the.horses, secured by the retention of the title in the consignor, evidenced by the bill of lading; the horses having been consigned to the shipper. Upon ascertaining the the mistake .made by
The ruling of the court upon the pleading was, in effect, that plaintiff should recover upon these facts. In this conclusion we are of opinion the court erred. The act of the railroad carrier in delivering the property to the defendant, whether induced by fraud or mistake, did not operate to divest the title of the consignee, and if the consignee had instituted this action, there is no statement of fact in the pleadings which would have defeated the action ; but this action is by the railroad. The plaintiff, when it received the horses and was in possession of them as a common carrier, had a special property in the horses which would support an action in detinue or trover, or trespass, against any one who wrongfully dispossessed it, subject to any legal conditions which applied. The general rule is, that where any person has been induced to deliver any thing, by such means (whether by fraud or mistake of fact), that he is entitled to rescind the transaction, he must, in order to do so, first restore to the o her party whatever may have been received in exchange for the thing he seeks to recover back. — Evans v. Gale, 17 N. H. 573, s. c. 43 Am. Dec. 614; Jones v. Anderson, 82 Ala. 302. In this case the plaintiff parted with the possession and such special property in the horses as was vested in it as a common carrier or bailee upon the consideration of the payment of ,a certain sum of money. ' It seeks to recover back the property upon the grounds, that it delivered the property to defendant by mistake of fact, or fraud, and ac the same time refuses to repay the defendant the money received. We cannot perceive any sound reason why the general rule does not apply to the plaintiff. The appellee cites the case of Young v. The East Alabama R’y Co., 80 Ala. 100, in sup
Reversed and remanded.