Peoples Savings Bank & Trust Co. v. Huttig Manufacturing Co.

PER CURIAM. This is an action of trover, by the appellant against the appellee, for the conversion of certain roofing material described in the complaint. The facts are set out in the special plea (which will be copied in the statement of the case by the reporter), and the bill of exceptions states that it is admitted that said statement of facts is correct. Under section 6135 of the Code of 1907, a warehouse receipt stands in lieu of the goods, and the transfer of the receipt is the delivery of the posession of the goods.—Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10, 18; Commercial Bank of Selma v. Hurt, 99 Ala. 130, 134 et seq., 12 South. 568, 19 L. R. A. 701, 42 Am. St. Rep. 38; Danforth v. McElroy, 121 Ala. 106, 108, 109, 25 South. 840; Amer. Pig Iron Storage Warrant Co. v. German, Ex’x, et al., 126 Ala. 194, 242, 28 South. 603, 85 Am. St. Rep. 21; Weil Bros. v. Ponder, 127 Ala. 296, 300, 28 South. 656; Merchants’ Nat. Bank v. Bales, 148 Ala. 279, 282, 41 South. 516. The original holder of the warehouse receipt, in this case, by virtue thereof, held the possession of the goods which it represented, and each transfer or hypothecation of the receipt operated as a symbolical delivery of the possession of the goods. “One who buys property must, at his peril, ascertain the ownership, and if he buys of one wdio has no authority to sell, his taking possession, in denial of the owner’s right, in a conversion.” — 2 Cooley on Torts (3d Ed.) p. 856 et seq., and notes; Marx v. Nelms, 95 Ala. 304, 10 South. 551. “Any distinct act of dominion wrong [398] fully exerted over one’s property, in denial of his right, or inconsistent with it, is a conversion.”—2 Cooley on Torts (3d Ed.) 859; 2 Jaggard on Torts, p. 724; Bolling v. Kirby & Bro-., 90 Ala. 215, 222, 7 South. 914, 24 Am. St. Rep. 789; Fields v. Copeland, 121 Ala. 644, 649, 26 South. 491; Boutwell et al. v. Parker & Co., 124 Ala. 341, 343, 27 South. 309; Woods v. Rose & Co., 135 Ala. 297, 300, 33 South. 41; Hunnicutt v. Higginbotham, 138 Ala. 472, 475, 35 South. 469, 100 Am. St. Rep. 45; Milner & Kettig Co. v. De Loach M. & Mfg. Co., 139 Ala. 645, 651, 36 South. 765, 101 Am. St. Rep. 63; Staff sky v. Southern Railway Co., 143 Ala. 272, 274, 39 South. 132; Henderson v. Foy, 96 Ala. 205, 206, 11 South. 411. Some of the cases refer to the fact that the party adjudged guilty of conversion had knowledge of the rights of the true owner, but this is not necessary to constitute conversion. As stated in the first citation from Cooley on Torts, supra, he buys “at his peril.”—Milner & Kettig Co. v. De Loach M. & Mfg. Co., 139 Ala. 645, 650, 36 South. 765, 101 Am. St. Rep. 63; 2 Jaggard on Torts, p. 270; Camody v. Portlock, 12 South. 781, 782; Kenney v. Ranney, 96 Mich. 617, 55 N. W. 982, and cases cited. The necessity for a demand does not exist where the conversion has taken place without regard to the demand, but only where the possession has been under a contract of purchase or otherwise, so that, by reason of invalidity, or from some other cause, the party delivering possession has a right to disregard or disaffirm the sale or delivery and demand the goods. In such case the conversion is not established until the demand and refusal.—Cent. Railway & Banking Co. v. Lampley, 76 Ala. 357, 367, 52 Am. Rep. 334; King v. Franklin, 132 Ala. 560, 566, 31 South. 467; Moore v. Monroe Refrig. Co., 128 Ala. 621, 29 South. 337; Strauss & Sons [399] v. Schwab et al., 104 Ala. 669, 672, 16 South. 602; Jesse French Piano & Organ Co. v. Johnston et al., 142 Ala. 419, 421, 37 South. 924. There was no necessity for a demand in this case, as the agreed statement of facts does not show that the goods were delivered under any contract, or sale, or agreement. The next insistence by the appellant is that the plaintiff, having placed the goods in the hands of J. O. Gould, and thus clothed him with the apparent ownership of the goods, is estopped from claiming the same of one who, in good faith, has purchased the same from said Gould, on the principle that, where one of two innocent parties must suffer loss by the wrong of a third person, he who enabled the third person to commit the wrong must suffer the loss. It is true that the owner of personal property may, by clothing another with the apparent title or ownership and authority over it, estop himself from claiming the property in the hands of a bona fide purchaser from the person so clothed; but in order to put in operation this estoppel “something more is required than mere possession on the part of the apparent owner. There must be a fraudulent or deceptive purpose in view, or implied from the special circumstances of the case, on the part of the true owner,” or at least a knowledge on his part of the acts of ownership, from which his acquiescence may be inferred.—16 Cyc. 775, 776, and notes. ■ In our own case of Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10, 19, the owner “had procured the warehouse receipts to be taken in the name of Munter & Bro.” In the case of Noble v. Moses Bros., 74 Ala. 604, 619, 620, the daughter had clothed her father- with the power of using her credit, had repeatedly signed notes and other securities relating to the farming business which he was conducting on her land, etc. In the case [400] of Danforth v. McElroy, 121 Ala. 106, 25 South. 840, the original owner of the warehouse receipt had indorsed and delivered it to another, thus clothing him. with the apparent legal ownership of the cotton. In another case, where cotton was shipped to a factor, who stored it and took receipts in his own name, it was held that a pledge made by the factor was not superior to the rights of the true owner.Com’l Bank of Selma, v. Hurt, 99 Ala. 130, 134, 12 South. 568, 19 L. R. A. 701, 42 Am. St. Rep. 38. The statement of facts agreed on does not show such action on the part of the true owner of the goods in this case as to authorize the invoking* of this equitable maxim in favor of the defendant. The judgment of the court is affirmed. Affirmed. Note. — The foregoing opinion was. prepared by Mr. Justice Simpson, of the Supreme Court, before the transfer of the case to this court, and is adopted by this-court.