Britt v. Pitts

MoCLELLAN, J. Parish sued White in detinue to recover certain six bales of cotton. Anglin interposed a claim to the cotton by filing affidavit and giving the statutory bond. Britt & Co. and T. F. Pitts were the sureties on this bond. Pending this claim suit the cotton was released from the seizure and came into the hands of Britt & Co., or rather of Kate Britt, who carried on business and signed by another said bond in and by that name, and she sold the property and converted the proceeds to her own use more than a year before the present action was instituted. Within a year before this suit was brought, the claim suit was determined in favor of plaintiff in the original action, and there was judgment for the property, with assessment of the value thereof, against Anglin. The property not being delivered there was judgment and execution against Anglin and the sureties on said bond, Britt & Co. and Pitts, for the assessed value thereof &c. Pitts paid this judgment, and instituted the present action on the case against Kate Britt to recover damages alleged to have been sustained by him because of her failure to deliver said cotton under the judgments in the detinue and claim suits. Defendants pleaded to the complaint as amended (1) the general issue ; (2) the statute of limitations of one year; and (3) “that at the time of the execution of the bond or instrument, the foundation of the suit, she was a married woman, the wife of John T. Britt.” Plaintiff replied to this last plea “(1» that the cause of action set forth in the complaint is for the tort alleged to have been committed by the defendant, and if she be a married woman, as alleged in the plea, she is liable for said tort, and said plea is no' answer to this action ; (2) that the liability of the defendant on the bond mentioned in said plea has been adjudicated by a former judgment of this court; and (3) that if it be a fact that defendant by reason of her coverture was not liable upon said bond; yet having [405] received said property levied upon it became her duty to restore the same to the satisfaction of said judgment, and failing in this she is guilty of a fraud in law, and is, therefore, liable in this action. ” Defendant demurred to this replication on the grounds : “(1) that the complaint filed in said cause is upon a contract and not in tort; and (2) that the complaint filed in said cause is ex contractu, and said replication is no answer to said plea.” The court was clearly right in overruling these assignments of demurrer to the replication. The suit is not on the bond, but for a breach of duty imposed by law upon the defendant and resting on the facts that she had executed the bond, taken the cotton under it and failed to deliver it up under the judgment in the origina] suits ; and the bond is in the case not as the foundation of the suit but as inducement merely, showing the relation out of which the duty arose. — Mobile Life Ins. Co. v. Randall, 74 Ala. 170; White v. Levy, 91 Ala. 175, 177-8; Sharpe v. National Bank. 7 Ala. 644, 647-8. We hold that Mrs. Britt, having acquired possession of the property under the bond for its forthcoming to satisfy Parish’s judgment, was under a legal duty to her co-surety on that bond to surrender the property or its proceeds in exoneration of the co-surety’s alternate liability, and that plaintiff, having been forced to pay the value of the property because of her default in the performance of this duty, may recover his damages thereby occasioned in this form of action. — Kent v. Long, 8 Ala. 44; Aderholt & Co. v. Smith, 83 Ala. 486. All the facts in the complaint having been proved without conflict, the plaintiff was entitled to the general charge, which the court gave at his request, unless the plea of the statute of limitations of one year has been sustained, or it has been shown that the defendant is exempted by reason of coverture from the liability sought to be fixed upon her. With respect to the statute of limitations it will be sufficient to say that this cause of action did not accrue to the plaintiff until after the duty of restitution had been imposed upon Mrs. Britt by the judgment, in the claim suit, and she had made default in its performance, and the plaintiff had in consequence thereof been forced to pay the assessed value of the property ; and that all [406] this transpired within a year before suit brought. So that this plea is not sustained, and, indeed, no evidence was adduced tending to sustain it. As to Mrs. Britt’s coverture : that plea was clearly no answer to the complaint, which charged her with' a tort, as we have seen. Moreover, it was further bad as a plea of coverture in that it did not negative her husband’s consent to the execution by her of said claim bond, or to her engaging in business, expressed as required by the statute. — Code, §§ 2346, 2350. But the plaintiff did not demur to the plea on either ground or at all, indeed, and it must stand in the case as a good plea of coverture. The plaintiff, however, filed a replication to the plea, which set up matter appropriate to a demurrer, i.e., “that the cause of action as set forth in plaintiff’s declaration is for the tort alleged to have been committed by the defendant, and if she be a married woman she is liable for said tort, and said plea is no answer to this action,” and the defendant, after interposing a demurrer to this, among other replications, on grounds which could not be sustained, and after the court had properly overruled her demurrer, took issue upon this replication. The attempted defense of coverture came in this way to turn upon the truth or falsity of the replication quoted above. The facts stated in it — really mere conclusions or propositions of law, though treated by the defendant as proper to be thus presented — are proved upon and by the face of the complaint itself. And so whether the other replications were good or bad, or were proved or not, the establishment in this way of the first one answered and emasculated the,plea of coverture. Under these special pleas, therefore, no defense was made out, and the action of the coui’t in giving the affirmative charge for plaintiff, the evidence without conflict proving the complaint, is free from error. The judgment of the circuit court is affirmed.