Opinion
7 Div. 586.
November 18, 1926.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
Davis Locke, of Birmingham, and Isbell Scott, of Ft. Payne, for appellants.
A complaint for destruction of a lien must set up facts showing that the lien was destroyed, and not aver it as a mere conclusion. Richardson v. Sewell, 19 Ala. App. 399, 97 So. 678; Clark v. Johnson, 7 Ala. App. 507, 61 So. 34. The measure of damages for conversion is their reasonable market value at the time and place of conversion. Zimmern v. Southern R. Co., 207 Ala. 169, 92 So. 437.
C. A. Wolfes, of Ft. Payne, for appellee.
The complaint in this case is sufficient. Baker v. Hutchinson, 147 Ala. 636, 41 So. 809. The jury having taken the estimate of the value of the property fixed by defendants, there was no error in rulings on evidence and charges as to this question. Jones v. White, 189 Ala. 622, 66 So. 605. A demand for payment of the property converted is not a waiver of the right to sue in trover. Dixie v. Harrison, 163 Ala. 304, 50 So. 284.
On March 24, 1924, R. A. Hale executed two mortgages to the N. S. Davenport Company, appellee here, on his crop of cotton, corn, and produce to be raised that year in De Kalb county, which mortgages became due July 1, 1924, and October 1, 1924. These mortgages were duly recorded, and no assignment of error or argument of counsel is here presented, questioning their validity or the amounts due thereon. Hale owned his farm in said county during that year and resided thereon. He raised and gathered on said farm a crop of strawberries and Irish potatoes, which, with other produce, was shipped to Birmingham, sold and disposed of by Douglass Bros., appellants here, who are commission merchants dealing in such produce. The strawberries, it appears, were shipped in May and June, and the potatoes in July, 1924. No part of the mortgage indebtedness had been paid; the full amount being due thereon. On September 11, 1924, the N. S. Davenport Company, mortgagee, brought this suit to recover of Douglass Bros., R. A. Hales, and one Colvin, who seems to have managed the shipments, damages for destruction of its mortgage lien. There was judgment for the plaintiff against all defendants, from which judgment Douglass Bros. only have prosecuted this appeal.
But few questions are here presented for review. The first challenges the sufficiency of counts 3 and 4 upon which the cause was tried as against the demurrer interposed, but we are of the opinion these counts are sufficiently definite under our liberal rules of pleading, and that the authority of Baker v. Hutchinson, 147 Ala. 636, 41 So. 809, fully sustains the action of the court in overruling the demurrers thereto.
It is further insisted the affirmative charge as requested by defendants should have been given upon the theory that the proof shows no more than a mere conversion of the property, and not such disposition thereof as to place it beyond the reach of the plaintiff, and thus a destruction of its lien. Appellant cites Richardson v. Sewell, 19 Ala. App. 399, 97 So. 678, and Clark v. Johnson, 7 Ala. App. 557, 61 So. 34, where many of our cases are collated.
We recognize the rule as contended for by appellants, but conclude that the evidence offered suffices to establish for the plaintiff a prima facie case of destruction of the mortgage lien.
In the trial of this cause, the jury was expected to exercise its common sense and weigh the evidence in the light thereof and of this everyday observation and experience. Appellants were engaged in the purchase and sale of produce upon the market for a commission. This produce consisted in perishable goods, sold and disposed of in the open market in Birmingham a considerable period of time before the bringing of this suit, and this evidence was sufficient, we think, from which the jury could reasonably infer that it had been placed beyond the reach of plaintiff and the lien thereby destroyed. Rogers v. Brooks, 105 Ala. 549, 17 So. 97.
What was said by plaintiff's manager to defendant Douglass Bros. subsequent to the disposition of the produce amounted to no more than a demand for payment, which would not constitute a waiver to prosecute this suit for a destruction of the lien. Dixie v. Harrison, 163 Ala. 304, 50 So. 284. The affirmative charge was properly refused.
The court, in the oral charge upon the question of damages, omitted any reference as to the market value of the produce at Birmingham, where it is insisted the conversion took place and the lien was destroyed, and exception was reserved thereto. Zimmern v. Southern Ry. Co., 207 Ala. 169, 92 So. 437.
Conceding, without deciding, this was error, it was without injury to appellants. The jury were specifically instructed that in no event could recovery exceed the amount due on the mortgage indebtedness, which instruction was observed by the jury in the verdict rendered. The quantity of produce so shipped and disposed of did not constitute a controverted issue, and, applying thereto the lowest market price at Birmingham, as testified by appellants' manager, it appears that the market value was in excess of the mortgage indebtedness. The jury very clearly accepted appellants' valuation as so fixed by their proof, and they suffered no prejudice by such instruction. Jones v. White, 189 Ala. 622, 66 So. 605.
These observations apply likewise to assignments of error 5, 6, 7, 8, 12, 13, 12 1/2, and no prejudicial error appears.
There is so clearly nothing in assignments 4, 9, 10, and 11 calling for a reversal of the cause, that a discussion of them is deemed unnecessary, and indeed they are given but scant consideration in brief. The assignment as to the action of the court in overruling the motion for a new trial presents only the matters hereinabove treated and considered, and needs no further discussion.
The questions presented in argument of counsel have been considered, and we find no reversible error in the record.
Let the judgment be affirmed.
Affirmed.
SAYRE, MILLER, and BOULDIN, JJ., concur.