Kelly v. Eyster

McCLELLAN, J. The complaint in this cause claims damages for that the defendant, Kelly, removed, or caused to .be removed, and converted to his own use certain five bales of cotton on which plaintiff had a lien for rent and advances, by which said removal or conversion, [330] it is averred, said lien was destroyed and the remedy for its enforcement was lost, the defendant having, it is further alleged, notice or knowledge of said lien. It is not averred that the cotton was the property of plaintiff, or that the defendant converted any property of the plaintiff. It is, therefore, not conceivable that the complaint could be reasonably construed to be in trover. On the other hand its averments present a case for damages consequent upon the wrongful deprivation of power to assert a right. The wrong done was in the removal of the cotton, but this did not per se inflict the injury. That resulted mediately and consequentially from the further fact that plaintiff had a lien on the property. The appropriate action was case. The only action stated is case. If the statement is defective at all, the'insufficiency lies in the manner of it and not in the matter — in the statement of the existence of a lien as a conclusion of law instead of a statement of the fact upon which the lien arose and exists ; and'this infirmity, demurrer being pretermitted, was Avaived by the plea of not guilty : as the issue was made, the complaint for all practical purposes was a perfectly good one in case. Under the general issue, upon which the case was tried, it was entirely competent for the plaintiff to prove the relation of landlord and tenant between himself and McVay, and knowledge or notice of that fact on the part of the defendant, as going to show that the latter knew of the existence of the plaintiff’s lien on cotton raised by McVay on the rented land. The lease and McVay’s note for the rental of 1890 were properly received to show the relation, and the facts that McVay rented the same land from the plaintiff for the years 1888 and 1889, that defendant knew this and paid the rent of the tenant for those years, that his possession continued into and during the year 1890 without any change, and that plaintiff actually told defendant of the lease for that and the succeeding two years, were properly admitted to show defendant’s knowledge of the relation. Whether plaintiff had title to the land was not a pertinent inquiry in this case. Without title he would still have been McVay’s landlord, and would still have had the valuable right to collect the rental agreed upon by the enforcement of a landlord’s lien upon crops grown on the place. [331] Defendant’s relation to McVay in respect of crops grown on other lands, his claims against the same and his rights as to the manner of their enforcement, had no pertinency to the issues in this case. Whether McVay owed him or not, and whether his debt, if any, was secured by a mortgage on the crops of other lands or not, he was liable in this action if he removed cotton raised on this land having notice of the fact and of plaintiff’s lien; and if he did not remove or convert such cotton . or did remove or convert it without notice of its coming from this land, and of the lien, he would not be liable, wholly regardless in either case of his rights in respect of crops from other lands. That cotton was received by him from McVay, or that proceeds of cotton which McVay had went to his benefit, is not controverted. His right to the cotton or its proceeds as against McVay is not controverted. Whatever the nature or evidence of that right may have been, he had no right as against the plaintiff, if the cotton was the product of plaintiff’s land, and evidence of its nature could shed no light on the inquiry as to whence the cotton came or as to notice of its being subject to plaintiff’s lien. The court, therefore, properly excluded evidence of the mortgage executed by McVay to defendant. We find evidence in this record tending to show that McVay shipped cotton to defendant’s factors in Memphis, Tennessee, that this cotton, or the greater part of it, was raised on plaintiff’s land and was subject to his lien for rent, that defendant knew this, that the shipment was made with his knowledge in his interest, for his benefit, and that he received credit for the proceeds of the same, if he did not indeed have the cotton itself entered on his account with his factors. There was evidence from which the jury might have been justified in finding that he procured the shipment to be made in McVay’s name, thereby himself in legal sense destroying the remedy for the enforcement of plaintiff’s lien. It was uncontroverted that Kelly knew of the relation of landlord and tenant between plaintiff and McVay. Knowing this he had notice of facts which should have excited his inquiry as to the existence of a lien in plaintiff’s favor on crops grown on the leased land. Such notice is equivalent to knowledge. Charge 1 given for plaintiff when referred to the evidence asserts only this. [332] If it involved a tendency to mislead, this should have been corrected by a request for an explanatory instruction. The second charge is the simple assertion of a fact. Plaintiff testified that he informed defendant that McVay was his tenant. The circumstances go to show that defendant knew of the tenancy. And the defendant unequivocally swore that he did know of it. We are unable to see how the omission of an hypothesis from this charge — the failure to predicate the instruction on the jury’s belief of the uncontroverted evi-, dence given by each party — even if that were ordinarily necessary — could possibly have prejudiced the defendant. To the contrary it seems clear to us that it could and did not. So that the omission of the hypothesis, if error, was without injury to the appellant. With the views we have expressed as to the tendencies of the evidence in plaintiff’s favor — tendencies which are not satisfactorily rebutted — and the application of the rules which govern us on motions for new trials, we can not do otherwise than concur in the propriety of the circuit court’s action in denying defendant’s motion for a new trial. — Cobb v. Malone & Collins, 92 Ala. 630. Affirmed.