Southern Ry. Co. v. City of Attalla

ANDERSON, J. While it is true that, to support an action of trover, the right of property, general or special, and possession, or an immediate right of possession, must concur in the plaintiff at the time of the conversion, we think the complaint avers such an ownership and possession as will support the action. The third count claims that the water put by the plaintiff into the tank of the Alabama Great Southern Railroad Company was for a limited and specific purpose, and that it was converted by the defendant, and thus diverted from the use or purpose for which it was there put. It shows an ownership in the plaintiff and possession until used or converted by the Alabama Great Southern Railroad Company. The third count was in trover, and states a good cause of action, and -was not subject to any of the grounds of the demurrer. “In its technical and more restricted sense, election of remedies is the adoption of one of two or more existing remedies, with the effect of precluding a resort to the others. The remedies here intended are known as exclusive or alternative remedies.” —7 Am. & Eng. Ency. PL & Pr. 361. To make a case for the application of the elective principle, the party must have actually at command two inconsistent remedies.— Morris v. Rexford, 18 N. Y. 552; McNutt v. Hilkins, 80 Hun (N. Y.) 235, 29 N. Y. Supp. 1047; Kinney v. Kiernan, 49 N. Y. 164. There are cases wherein the owner may waive an action for the conversion of his property [659] and bring assumpsit, and by so doing he might be precluded. from subsequently maintaining trover. In order, however, for it to have that effect, both remedies must have been open to him when he made the election. In our state the owner of personal property is put to his action for a conversion and cannot recover in assumpsit for money had and received, unless there has been a sale and the reception of money, or of things as money, as the price or value of plaintiff’s property. — Smith v. Jernigan, 83 Ala. 256, 3 South. 515; Fuller v. Duren, 36 Ala. 73, 76 Am. Dec. 318; Crow v. Boyd’s Adm’rs, 17 Ala. 51; Pike v. Bright, 29 Ala. 332. These views are not in conflict with the rule laid down in the case of Hickman v. Richburg, 122 Ala. 638, 26 South. 136, and cases there cited. There the plaintiff had the right to affirm the sale and recover the price, or to disaffirm the sale and recover the property; but in the case at bar the plaintiff could not maintain assumpsit, and could not be precluded from an action for conversion, upon the doctrine of election, by bringing an action that could not be maintained. The third count does not aver that the defendant had sold the water, nor is this fact set up in the pleas; and without such an averment the pleas set up no bar to the action and the demurrers to pleas 4 and 5 were properly sustained. A demurrer was interposed to the third plea, and which said plea is subject to what has been said of pleas 4 and 5; but the record shows no ruling of the court on the demurrer to said third plea, which we must assume was abandoned by the plaintiff. So long as the third plea was in, the defendant had the right to introduce evidence in support.of same, and the trial court erred in sustaining an objection to the summons and complaint in the former suit, and for this error the judgment must be reversed. There was no error in sustaining objections to the witness Frost as to what was done on the former trial. The contract made with the Alabama Great Southern Railroad Company provided for water for its own use only, and did not license other roads to use water thereunder, nor authorize said Alabama Great Southern Railroad Company to let water to the defendant, and thus preclude the plaintiff from recovering for same. [660] That the defendant paid the Alabama Great Southern Railroad Company for this water is a question between the two roads, but that fact does not deprive the plaintiff from recovering for a conversion by the defendant of its property. The judment of the city court must be reversed, and the cause remanded. Reversed and remanded. Weakley, O. J., and Tyson and Simpson, J.J., concur.