Tamplin v. Still's Adm'r

STONE, C. J. The testimony given for plaintiff in this cause tends to show, that Benjamin Still deposited the little bag, with its contents, with Tamplin, the appellant. There is not the slightest testimony tending to show it was a loan. If it was a deposit, it was a deposit for safe-keeping, not for use; and if so deposited, the presumption is he retained it, and retained it unaltered, until the proof shows the contrary. There being no proof that Tamplin made any use of whatever was [378] deposited with him, if any thing, his liability for its'return will date from the time its return was demanded, and he refused or failed to return it. In such case, even if he received money on Sunday for safe-keeping, and kept it over till Monday, or a later day, and then used it, this would be'a conversion, for which an action would lie. — Flanagan v. Meyer, et Ala. 132. And if he so deceived the package, and afterwards converted the contents, plaintiff could waive the tort, and sue in assumpsit for so much money had and received ; and such waiver would only have the effect of converting the tort into a constructive contract, taking effect, as such, at the time of the conversion. If the case supposed above be the true facts of the transaction in controversy, then it was not such a contract made on Sunday, as falls within section 2138 of the Code of 1876. Under these principles, the Circuit Court committed no error in the charge given, nor in the refusals to charge as asked.- We need scarcely add, if there had been any testimony that the transaction was a loan, then charges one, three, four and six, asked by defendant, ought to have been given. .2. Mrs. Barnett, witness for plaintiff, testified that, on a Sunday morning, Mr. Still, plaintiff’s intestate, carried the bag, which it' is claimed contained coin, into the parlor of his own dwelling, and there had an interview' with Tamplin, the defendant. She heard the voices, but could not distinguish the words. She further testified, against the objection and exception of defendant, “ that soon after, said Still came [returned] into the room where witness was, and told her that he had let the defendant have the money to -keep.” This testimony was offered.and received as a res gestae declaration. What was the transaction, or thing done, which this remark could tend to elucidate? The proof only informs us he returned to the room in which the witness was, after having had an interview with Tamplin in another room, and made the remark. If he went out, carrying the bag, and returned without it, and then immediately made' the remark attributed to him, this would have been the expression of a natural impulse — -an explanation of the fact that he returned without the bag, when he had recently before carried it out with him. Offered alone as it was, with no material fact in proof before the court which it could tend to elucidate, the Circuit Court erred in receiving it. — 1 Greenl. Ev. § 108; Ala. Great Southern R. R. Co. v. Hawk, 72 Ala. 112. 3. The Circuit Court also erred in permitting plaintiff to testify that the entry in the little book was in the handwriting of her deceased husband. That entry was made testimony, only as tending to explain more fully the conversation plaintiff- and defendant had held in regard to it. It is not shown that, [379] in that interview, any thing was said in regard to the handwriting. . It was admissible in evidence as- part of a conversation ; not -as a memorandum made by intestate. Other questions are raised, but there is nothing in them. [Reversed and remanded. Cjc-opton, J., not sitting, having been of counsel.-