Stevenson & Herzfeld v. Whatley

ANDERSON, J. The trial court, at the request of the plaintiffs, gave certain charges, to the effect that the mortgage had not been paid and that plaintiffs were entitled to recover unless they authorized Hadden, the mortgagor, to sell the mules. This rendered any errors, if any there were, in ruling upon the evidence as to the foreclosure or payment of the mortgage, error without injury. There was proof from which the jury could infer that the plaintiffs gave Hadden unconditional authority to sell the mules, and if this were true the defendant Whatley would be protected in buying them and in paying the money to Hadden as the agent of plaintiffs. It is true plaintiffs denied this authority, and also claimed that, if they authorized him to sell at all, it was with the understanding that he was to bring them the money. It was a question for the jury, however, as to whether or not plaintiffs authorized Hadden unconditionally to sell the mules, and the trial court did not err in refusing the general charge requested by the plaintiffs. There was no error in permitting Hadden to tell what he did with the money from the sale of the mules, coupled with the further testimony that he informed the plaintiffs that he was using it in the mill business and that they did not repudiate his act in so doing. This was a circumstance for the jury, corroborative of the conten [253] tion of defendants that tbe sale had been authorized by the plaintiffs. Aside from the foregoing, this case would have to be affirmed. Issue was taken on plea 1, and, whether a good plea or not, it was proved beyond dispute, and the defendants were entitled to the general affirmative charge.: — Glass v. Meyer & Son., 124 Ala. 332, 26 South. 890; Capitol City Co. v. Cofield, 131 Ala. 198, 31 South. 37; Taylor v. Smith, 104 Ala. 537, 16 South. 629. This plea 1 was interposed by both defendants, and the proof shows that there ivas no joint conversion of the property by these defendants. The judgment of the circuit court is affirmed. Affirmed. Dowdell, C. J., and Simpson and Mayfield, JJ., concur.