Baker v. Malone & Sons

McCLELl.AN, C. J. This suit is by Baker against M a lone & Sons. The .-omplaint in substance alleges that one Campbell stored sixty-six bales of cotton with defendants as Avarelioinemen, and took their receipts as warehousemen for the same, that plaintiff subsequently purchased this cotton from Campbell and thereupon received possession and control of said receipts, the said Campbell delivering them to him, that plaintiff then demanded said cotton of defendants but that they failed and refused to deliver the same to him, whereby plaintiff was damaged in the sum of seventeen hundred and fifty dollars, for vdiich he sues. Defendants demurred to the complaint, the demurrer was sustained, and, plaintiff declining to amend, judgment was entered for defendants, and plaintiff appeals. The complaint presents no cause of action in trover: It does not aver conversion by the defendants.—Bolling v. Kirby, 90 Ala. 215, s. c. and note, 24 Am. St. Rep. 789-819; Davis & Son v. Hurt, 114 Ala. 146. The legal title to the receipts executed by defendants was, upon the averments of the complaint, not in the plaintiff because they had not been indorsed to him. Code, § 4222. There is no averment that Campbell to whom the receipts were issued had assented in writing that the property should be delivered to the plaintiff. There being no such assent and the plaintiff not being ■the-“legal holder of the receipts,” the statute expressly forbade the defendants to deliver the cotton to him. Code, § 4221. This cannot be contorted into an action for money had, and received, for’ there is no averment that there had been a sale by defendants and the receipt by them of the proceeds, even if such action -would lie on these averments with those already in the complaint, which we do.not decide. [513] We, therefore, 'concur with the circuit court in its ruling on demurrer; and its judgment for the defendants must he affirmed. Affirmed.