C. W. Zimmerman Mfg. Co. v. Dunn

DOWDELL, C. J. The complaint as originally filed contained a single count in trover, in code form, for the conversion of a specified amount of lumber. It was subsequently amended by adding a second count, in code form, for the conversion of a certain number of pine logs. The general issue was pleaded, and on this plea the case was tried. It has been firmly settled in this court that in the action of trover there must be a concurrence of the right of property, general or special, and of possession, or the immediate right of possession, in the plaintiff at the [275] time of the conversion. —Booker, et al. v. Jones, Adm’r, 55 Ala. 266-275; Rees v. Coats, 65 Ala. 256; Beall v. Folmar, Sons & Co., 122 Ala. 414-418, 26 South. 1; Moore et al. v. Walker, 124 Ala. 199, 26 South. 984; Johnson v. Wilson & Co., 137 Ala. 468, 34 South. 392, 97 Am. St. Rep. 52; Stafsky v. Southern Railway Co., 143 Ala. 272, 39 South. 132; 1 Chit, on PI. 148-151. In the case before us the rights of property and of possession at the time of the alleged conversion were sought to be proven by showing title to and possession of the land from which the pine logs were cut, and only in this way. Along this line the plaintiffs Avere permitted, against the objection of the defendant, to introduce in evidence the copy of a tax deed to two of the plaintiffs and a third person, as color of title under which the plaintiffs claimed to have entered into possession of the land. The original tax deed, though void as a muniment of title, would have been admissible as color of title in connection Avith the evidence of actual possession — not as evidence of possession in itself, but as explanatory of the bona tides of claim of ownership and the extent of the possession. The copy, however, Avas inadmissible without a proper predicate accounting for the absence of the original. No sufficient predicate Avas here shoAvn. There were three grantees named in the tax deed, either one of Avhom Avas as much the rightful and lawful custodian of the deed as the other. Evidence by one of the grantees that he had once had possession of the original, and had searched for it, but could not find it, without proof that it was not in the custody of one of the other two grantees, was insufficient as a predicate for the introduction of secondary evidence, and it was error to admit the copy in the present case on the shoAving that was made. [276] There was no attempt to show paper' title to the land, such as would-draw to it possession, but actual possession with claim of ownership. The only evidence along this line was that Of -the plaintiff, Dunn, who testified on his direct examination “that he and his coplaintiffs had been in possession of the lands in controversy continuously since 1890, and that they went into possession under tax deeds afterwards introduced in evidence.” On his cross-examination this witness testified, “that the possession of the plaintiffs' consisted solely in the facts that upon one occasion, in the year 1890, he had the property surveyed, and- that upon, another occasion, in 1891 or 1892, Mr. Bolen, who is one of the witnesses in the case, acting as the agent of the plaintiffs, sold some cross-ties from said land; that witness was not. present when said cross-ties were sold; that the plaintiffs have paid taxes on said land ever since 1890, and except as is stated in cross-examination, the plaintiffs had done nothing to manifest'possession of the land; and that they had no possession, except such, acts as were testified to in cross-examination. Witness had never been on the land in person, hut knows that the land mentioned in his testimony is the land described in the tax deed.” This evidence fell far short of showing actual possession of the land, and hence any ownership thereof, or of the timber growing thereon. Nor was it sufficient, to afford a reasonable inference to be drawn by .the jury of general or special property-in the pine logs alleged to have been cut therefrom. The statement.or memorandum, identified-as having been drawn up by the witness Loranz. and delivered tc the plaintiffs by Aldridge, and which was submitted in ■evidence against the objection of the defendant, was material only as a statement that the number of pine, logs mentioned was cut from the particular land. On its [277] face it showed that the mentioned logs were bought of the defendant by the plaintiffs, and tended to show- a. recognition by tlie plaintiffs of title .to the same in tin-defendant. There was no pretense of a delivery under said purchase and a subsequent conversion by the defendant. On the cross-examination by the defendant of the witness testifying as to the making and delivery of the statement, the defendant sought to show that the same was made in an attempted compromise and settlement of the matter in dispute between the parties; but-the court refused to allow it to be done. In this the court was in error. If what was sought to be show n was true, then under the ruling of this court on a former appeal (151 Ala. 435-439, 44 South. 533) the instrument was not admissible. The court also erred in admitting evidence as to the contents of the letter claimed to have been received by the witness Dunn from the president of the defendant corporation. Conceding that a sufficient predicate of loss was shoAvn, there was no proof of the genuineness of the letter. Before the letter itself, if relevant and material, Avould be competent, its genuineness would, have to be shown. The rule as to the measure of damages was laid down on the former appeal. — 151 Ala. 440, 44 South. 533. It is not necessary to treat other assignments predicated upon charges given and refused. The .errors indicated, and Avhat we have said in reference thereto, will prove a sufficient guide upon another trial. Beversed and remanded. Simpson, McClellan, and Mayfield, JJ., concur.