Gerson & Sons v. Norman

McCLELLAN, J. This is an action of detinue prosecuted by Norman against Gerson & Son. Plaintiff showed title to the property — three bales of cotton — under a mortgage executed by Williams, who had grown the cotton on land belonging to Eiland. Defendants claimed the property under an alleged or supposed lien for the price or value of supplies and advances furnished and made by them to Williams to enable him tfi plant, cultivate and gather the crop of which this cotton is apart. The mortgage to plaintiff was executed January 6th, 1894. The supplies were furnished by the defendants during that year under the following writing executed by Eiland on December 7, 1893 : “Whereas, Noah Williams has rented from me for and during the year 1894 a two and half horse farm, * * * and whereas said Williams has made application to me to make advances to him in money, or other things'of value for the sustenance and well being of the said Williams or his family, for preparing the ground for cultivation, or for cultivating, gathering, saving, handling, or preparing the crop to be raised on said land for market, I do now7" request A. Gerson & Sons to make all such advances for the purposes aforesaid, and do hereby transfer and assign to the said A. Ge.son & Sons the lien given to me ■by law for such advances so made by them to the same extent as if they had been made by me for the purpose of securing such adva'ces. I further agree that outside of my rent, which is to be eighty-five dollars, I will not claim anything from said Williams until A. Gerson & Sons shall have been paid in full what he may owe them.” There was evidence that Eiland’s rent had been paid, that Gerson & Sons had furnished supplies &c., for which they had not been paid, and that the cotton in suit “was stored in Marks & Gayle’s warehouse in the city of Montgomery, Ala. in the name, and on the account, of Gerson & Sons” in the fall of 1894. There was evidence of the value of cotton during that fall, but no evidence was offered to show the grade or [437] value of the cotton sued for, or of its weight. The cotton, oii its proceeds, at the time of trial was in possession of the defendants under a forthcoming bond. The jury-returned a verdict for plaintiff, and assessed the value of the property at $65.48; and judgment was entered accordingly, with writ of seizure. The exceptions reserved to the charges of the court given at plaintiff’s request, and to its refusal to give the charge requested by the defendants, are without merit. The first charge given for the plaintiff asserts that under the paper, set out above, Eiland did not become responsible to Gerson & Sons for advances they might make to Williams, and this is in line with the construction put upon a very like writing by this court m Bell & Co. v. Hurst & McWhorther, 75 Ala. 44. The second charge given at plaintiff’s request and the action of thecourtin refusing the instruction requested by the defendants are also supported by an adjudica-, tion of this court directly in point. It was essential to defendants’ claim to subrogation to the lien of the landlord to show that the tenant, Williams, had knowledge of the request of Eiland to Gerson & Sons and of the consequent arrangement for the latter to furnish him supplies &c., at the time, or that he ratified the transaction after notice ; and this being a factor in the defense relied on, the burden in respect of it was upon the defendants. — Clanton v. Eaton, 92 Ala. 612. Nor can the appellants take anything by- their exception to that part of the court’s oral charge which is set,1 out in the- abstract. It is clear, as there stated by the court, that the writing of Eiland to Gerson & Sons did not itself confer any lien upon Eiland on the crop of Williams, and what else is there said is correct under Bell v. Hurst, supra. But the court, in our opinion, erred in not granting defendant’s motion for a new trial because of failure or absence of proof of value. We do not decide that it was necessary to prove the value of each bale of cotton separately or that the jury should have assessed their separate values. But there should at least have been some reasonably certain data furnished the jury by which to have ascertained and assessed the lump value of the cotton sued for. The only evidence adduced was of “the value of cotton during the fall of 1894.” Thus it is [438] stated in the abstract. If we take this to mean that the values of all grades of cotton at the time this suit was brought were proved, still there is no proof of the grade of this cotton, nor of the quantity of it. We do not feel justified in assigning it to any particular grade nor in assuming that each of the bales contained any certain number of pounds, nor do we think the jury had the right to make such an assignment or to indulge any such assumption. The evidence left xhe whole matter at large in respect of value, and there is'no assurance that the guess of the jury — for it was nothing more — that the cotton was worth $65.48 is not very wide of the mark. It is quite true that, as pointed out for appellee, the bill of exceptions presented here does not purport to set out all the evidence, but there is an affirmative statement in the abstract that “no evidence was offered to show the grade or value of the cotton sued for, or of its weight and this statement is not chalienged by a ■ counter abstract. The bill of exceptions might well affirmatively support this statement of the abstract though not purporting to set out all the evidence, and we must presume that it did so support the statement in the absence of a counter abstract. The motion for a new trial on the ground that the verdict was not supported by the evidence should have been granted. Reversed and remanded.