May v. O'Neal

TYSON, J. -Amended counts 1, 3 and 4 are in case. Count No. 1 is defective in not averring that the defendant had notice of plainti ff’s ownership of the mare. The other two sufficiently aver this fact and Avere not subject to the demurrer interposed to them. If it be true as averred in each of them, that the plaintiff rented the mare to Warren May, Sr., for the year 1898, and he, before the termination of his rental contract, sold or exchanged her to'tbe defendant, and he in turn sold or otherAvise disposed of her, attempting to convey an absolute title to the person to Aidrom he delivered her, Avith a knoAvledge that the mare was the property of the plaintiff, then the plaintiff is entitled to recover of him such damages as he may have sustained by reason of such wrong.' — Arthur v. Gayle, 38 Ala. 256; Williams v. Brassell, 51 Ala. 397. No demand upon the defendant by the plaintiff for a return of the mare after the termination Of the rental contract was necessary. Indeed, the plaintiff might have brought his action {in case) immediately upon the sale of her by the defendant. The averment in these counts as to demand may be treated as surplusage. Reversed and remanded.