Jebeles & Colias Confectionery Co. v. Hutchinson & Son

SIMPSON, J. This action is by the appellees, against the appellant, for the conversion of certain bottles, etc., by the defendant. The case was tried by the court without a jury. The assignments of errors from 3 to 13, inclusive, relate entirely to the admission and exclusion of testimony, as to which no argument is made. Assignment No. 1 is to the refusal of the court to grant a continuance to the defendant, which, under the facts shown, Avas a matter resting in the discretion of the court, and there is nothing to show that the discretion was abused. [110] Assignment No. 2 is that the court erred in refusing to allow the defendant to file plea 13. The pleadings had been distinctly closed on the previous day, and the court adjourned, with the distinct understanding that the pleadings were settled, and that the examination of witnesses would commence “promptly upon the convening in the morning.” The court did not err in refusing to alloAV an additional plea- to be filed. The first point claimed in the argument is that counts 1, 2, 3, and 4 were not sustained by the evidence. The only assignments of error to which this can be referred is the fourteenth, which is that: “The court erred in rendering the judgment against the defendant.” As count 5 lays the conversion of the entire property on the day the suit was brought, even if it should be admitted that the conversion Avas not proved on the dates stated in the previous- counts, that would not show that the court erred in rendering the judgment. So the question really is whether or not the court erred in rendering the judgment against the defendant on the entire pleading and evidence. There are several insuperable difficulties opposed to a recovery by the plaintiffs in this action. According to the testimony of both the plaintiffs and defendant, whatever goods were delivered by the plaintiffs to the defendant were delivered under a contract of sale, and even if that contract was void, which is not apparent, the goods could not be the subject of conversion until a demand Avas made for them and the demand refused, while the goods were in the possession of the defendant.: — Locke v. Reeves, 116 Ala. 590, 592, 593, 22 South. 850; Strauss & Sons v. Schwab et al., 104 Ala. 669, 672, 673, 16 South. 692; King v. Franklin, 132 Ala. 560, 566, 31 South. 467; 28 Am. & Eng. Ency. Law, 771; Ala. & Tenn. River R. Co. v Kidd, 35 Ala. 209, 220. The evi [111] deuce shows that the plaintiffs had been for years selling similar goods to the defendant, and while several witnesses testify that at the time the last demand was made they saw some bottles answering the description of those sold, yet there is no proof that the goods claimed in the complaint were in the possession of the defendant at the time of said demand. Several of the witnesses said it would be impossible to identify the bottles. Aside from this principle, which is decisive of the case, under its articles of incorporation defendant was authorized to purchase all articles of merchandise, and the purchase of these articles was not ultra vires; nor can it be said that the judgement of the court in the previous case was res judicata as to this point, as the record shows that there were a number of other pleas in that case, and the judgement was general. From aught that appears, that judgement, being an action of assumpsit, may have been on the ground that the goods had been paid for, or that the defendant had set-offs.—Huntzicker v. Crocker 135 Wis. 38, 115 N. W. W. 340, 15 Am. & Eng. Ann, Cas. 445, 446; Callan v. Anderson, 131 Ala. 228, 232, 31 South. 427; 23 Cyc. 1297, 1298; Dobson v. Hurley et al., 129 Ala. 380, 30 South. 598. ■ The judgment of the court is reversed, and a judgment will be here rendered in favor of the defendant. Reversed and rendered. Dowdell, C. J., and McCleilan and Mayfield, JJ., concur.