Steagall-Cheairs Fertilizer Co. v. Kennedy

SOMERVILLE, J. It appears that the plaintiff got by barter from a member of the firm of Kennedy Bros., a certain horse owned by them and upon which they had previously given a mortgage to the defendants. The defendant mortgagees, being authorized thereto by the mortgage contract, took the horse from the custody of the plaintiff, ivho now sues in trover for the alleged conversion. The only real issue in the case was whether or not the defendants had authorized the mortgagors to dispose of the horse, or afterwards ratified the exchange made with the plaintiff. The evidence pro and con was in sharp dispute. Kennedy Bros.’ predecessors in business were Clark & Kennedy, who had dealt in horses and mules, and had gotten a number of animals from the defendants, who were large dealers therein. (1) To close up this business, a note and mortgage were given to the defendants by Kennedy Bros, at the same time they gave to the defendants the mortgage in question. This mortgage was unnecessarily put in evidence by the defendants, and cross-examination as to its subject-matter led to many objections and exceptions, which are without material bearing upon the case. The trial court, however, overruled the defendants’ seasonable objection that it was irrelevant, and allowed the plaintiff to show that the stock which the defend [550] ants previously sold to Kennedy & Clark were sold to them with the understanding that they were to sell them. This was manifest error, for the previous giving of such authority to Kennedy & Clark was not competent evidence to show that the defendants gave a similar authority to Kennedy Bros, when the four horses were sold to them. — Singleton v. Thomas, 73 Ala. 205. Indeed, the horse in suit was not one of the four then sold, but already belonged to the mortgagors, and was included in the mortgage as security for the purchase price of the other four. There was no' connection between the two transactions, and the parties were different. — See Nelms v. Steiner, 113 Ala. 562, 22 South. 435; Baker v. Lehman & Co., 186 Ala. 493, 65 South. 231 (headnote 18). (2) Where the weight of the direct evidence was closely balanced, we cannot say that this testimony did not prejudice the defendants, and the error must therefore work a reversal of the judgment. Reversed and remanded. Anderson, C. J., and Mayfield anad Ti-iomas, JJ., concur.