Atchley v. Wood

CARR, Judge. Owen Atchley sued Ike Wood in one count of a complaint for the conversion of three bales of cotton. The time of the conversion is alleged: “on or about November 1, 1948.” [630] The court gave the general affirmative charge for the defendant. The evidence fails, to establish the time it is claimed the cotton was converted by the defendant. Many authorities hold that in an action of trover and conversion it is necessary and essential to allege and prove this material element of the cause of action. If the time of the conversion is stated under a videlicet, the proof must correspond to the e'xtent of showing that it occurred on or about that date. The following authorities are conclusive of the question of instant concern. Abercrombie v. Pell, 235 Ala. 396, 179 So. 371; Corona Coal & Iron Co. et al. v. Bryan et al., 171 Ala. 86, 54 So. 522, Ann.Cas.1913A, 878; Williams v. McKissick, 125 Ala. 544, 27 So. 922; Mobile J. & K. C. R. Co. v. Bay Shore Lumber Co., 158 Ala. 622, 48 So. 377; Kilgore & Son v. Shannon & Co., 6 Ala.App. 537, 60 So. 520. Section 16, Title 31, Code 1940 provides: “Unless otherwise stipulated, such rent and advances shall become due and payable on the first day of November of the year in which the crop is grown.” Counsel for appellant urges that the provisions of this statute can replace thq requirement of the proof of the time of the conversion. No authorities in point are cited. In the instant case the salient facts are stated in appellant’s brief: “The testimony showed that in the Spring of 1948, one Thurston Wood, son of defendant Ike Wood, had rented about eight or nine acres from Mr. Gus Bennett, to be planted in cotton, at a rent of one-fourth, but being offered a job at the bottling plant by Mr. Washington Bennett, son and agent of the land owner, the defendant Ike Wood entered into a verbal agreement with plaintiff that plaintiff was to make the crop, and defendant Ike Wood was to hoe and gather, plaintiff to have one-fourth of the crop, defendant Ike Wood one-half and as aforestated, the landlord one-fourth.” The plaintiff failed to get his share of the crop and hence this suit. The law relating to the allegation and proof of the time of the conversion is exact and explicit in this nature of a cause of action. By no logical reasoning could it be held that the provisions of the above statute could supply the omitted proof in the case at bar. The defendant was due the general affirmative charge which was given. The judgment of the court below is ordered affirmed. Affirmed.