Page images
PDF
EPUB

As shedding light on the questions we have been discussing, see Davis v. Lewis, 7 Term R. 17; Erber v. R. G. Dun & Co., 12 Fed. 526; McCorkle v. Binns, 6 Am. Dec. 420; Stow v. Converse, 8 Am. Dec. 189; King v. Root, 21 Am. Dec. 102; Lewis v. Hawley, 2 Day, 495; Read v. Hudson, 1 Ld. Raym. 610; Hall v. Smith, 1 Maule & S. 287; Whittington v. Gladwin, 5 Barn. & C. 180; Jones v. Littler, 7 Mees. & W. 423; Robinson v. Marchant, 7 Adol. & E. (N. S.) 918; Carpenter v. Dennis, 3 Sandf. 305; Phillips v. Hoefer, 1 Pa. St. 62; Cooley, Torts, 205. We hold that under the authority of Ware v. Clowney, 24 Ala. 707, and the principles of the other authorities cited, the publication complained of, in the matter last above referred to, is libelous per se without any averment of specific damage. Of course, the defense provided for under section 2725 of the present Code is open to defendant; and, if it can be shown that the publication as to its averred facts, is true, this will be an answer to the action. We have said above that the innuendo, found in each of the counts, that the meaning of the publication was that the plaintiff had been "guilty of embezzlement," was not authorized by the language employ. ed. That innuendo, as expressed, ought to have been stricken out on defendant's motion. In what we have said as to the sufficiency of the third count, we attach no importance to that innuendo, but treat the count as if that averment were not in it. The third count contains an averment of special damage. The burden of proving that averment rests on the plaintiff; and, if the truth of the publication be shown, it will be an answer alike to the general and special damages claimed. Reversed and re

[blocks in formation]

1. A set-off is not available as a defense to an action of tort.

2. Error in sustaining a demurrer to a plea in bar was harmless when the plea proposed no defense which was not available under the general issue, already pleaded, on which the case was tried.

3. A set-off is not available under a plea of the general issue.

4. One who, after renting land to another on an agreement for equal division of the crop, takes possession of all the crop when gathered, without any legal proceeding or permission from the tenant, is guilty of conversion as to half the crop.

5. A parol mortgage by the tenant to the lessor on the crop for advances made is no defense to an action for the conversion.

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Action by J. F. Rogers against R. Marlowe for the conversion of 100 bushels of corn and 2,000 pounds of seed cotton, the

property of the plaintiff. There was judg ment for plaintiff, and defendant appeals. Affirmed.

The defendant pleaded besides the general issue, two special pleas, the first of which was a plea of set-off, setting up, that at the time of the commencement of the action, the plaintiff was indebted to him in the sum of $100, for merchandise, goods and chatteis sold by the defendant to the plaintiff; also for work and labor done by the plaintiff for the defendant; for money lent by defendant to plaintiff; for money paid by defendant for plaintiff, at his instance and request. The second one was, that defendant had a landlord's lien on the property alleged to have been converted; that the products were raised and grown on lands of defendant; that he furnished the teams to cultivate said products, and that he furnished supplies and advances to the plaintiff, advanced by Hayes & Co., at the instance of defendant, and for which he was legally bound; that such advances were made for the sustenance and well-being of the plaintiff and his family, in cultivating and gathering the crop and preparing it for market, and that plaintiff agreed, that the defendant should take possession of plaintiff's part of the crop claimed to be converted, and apply it to the debt, which plaintiff owed defendant for advances as aforesaid; that in pursuance of said agreement, he marketed the said products, and credited plaintiff's debt to him for advances, and for which he held a landlord's lien; that he allowed plaintiff credit for the market value of the property, and after allowing him such credit, plaintiff still owed defendant a balance on said advances, for which defendant claimed judgment. The plaintiff demurred to the first plea, on the ground, that no set-off, or plea of set-off is available in an action in trover. He demurred to the second plea, because the same is a plea of setoff, "not available in this action, ex delicto, and because it combines or attempts to combine a plea of set-off, asking judgment for a balance due defendant,-which plea is not available in this action,-and a plea denying the conversion as charged in the complain, which pleas cannot be combined in such manner, and because it nowhere gives the amount of said debts for advances." The plaintiff also moved the court, to strike out plea No. 2, (1), because the same was unnecessarily prolix, irrelevant and frivolous; (2), because the same is not a concise plain statement of the matter relied on as a de fense, as required by the Code of Alabama; and the averment that plaintiff "agreed that defendant should take and apply the chattels, whose conversion is herein sued for, in satisfaction of a debt due by plaintiff," would be a full and sufficient statement of the defense; (3), "because the said plea attempts to set off other debts against plaintiff's action, and attempts to claim judgment for a balance, without stating the

amount of the said set-off debts, and without stating the amount of said balance for which judgment is claimed by defendant; and because all this is joined in the same plea with a plea to the merits of the action." The judgment entry recites, that "demurrers to pleas setting up set-off each sustained. Motion to strike plea No. 2 from the file granted." The plaintiff testified that during the year, 1892, plaintiff rented lands from defendant for the purpose of making a crop; that defendant furnished the land, teams and implements to make the crop, and plaintiff the labor, and by agreement the crop raised was to be equally divided between them; that when the corn had been gathered in October, and lay in piles in the field, defendant drove up one day with a wagon, and said he was going to take the corn and haul it home; that plaintiff asked him if he had an attachment for it, to which inquiry, defendant replied, he had not, but that he had something better, and that he was going to take the crop for what plaintiff owed him for advances; that plaintiff protested against his taking the corn and commanded him not to do so, but defendant proceeded to haul off the entire crop of corn against the protest of plaintiff; that shortly after this, defendant sent over to plaintiff's house, while plaintiff was away from home, where plaintiff had stored the entire crop of seed cotton raised on the place, and hauled it away to a gin, and afterwards, to market and sold it, and told plaintiff, afterwards, he had sold the cotton and paid in part, with the proceeds belonging to plaintiff, his account for advances; that the corn taken was SO or 100 bushels, worth from 50 to 60 cents per bushel, and the cotton 2,500 pounds, worth from 2 to 3 cents per pound, and that this was all the corn and cotton that was raised by plaintiff on the defendant's land; that defendant ever after taking the corn and cotton denied that plaintiff was entitled to have any part thereof, or that he had any right or interest therein, and that defendant had entirely excluded him from any use or enjoyment of the same, or any participation in the proceeds of the sale thereof. On the cross-examination, defendant asked the plaintiff, "If he did not owe him, defendant, for advances to make said crop, in an amount greater than the value of his, the plaintiff's, share of the crop, for which he was suing defendant for conversion?" On objection to the question, that it called for evidence not admissible under the pleadings, the question was not allowed to be answered, and defendant excepted. In answer to another question, not objected to, he stated, that he did not consent for defendant to take the crop and apply his, the plaintiff's part, in part payment of the debt which he owed defendant for advances to make the crop. The defendant proposed to ask witness, if he had not, in February, 1893, "when defendant became his surety, to

Mr. Hayes, for additional supplies, told defendant, if he would aid him in getting the supplies, that defendant could hold the crop made for the advances, until they were paid for?" and further, if he, plaintiff, did not know that the corn was all in the crib of defendant and had not been used or sold? To each of these questions the court sustained objections, on account of their immateriality, and defendant separately excepted. The defendant then proposed to prove, that he had a landlord's lien on the property alleged to be converted, and that the proceeds of the sale of the cotton had been applied by defendant to part payment of the debt of plaintiff to defendant, for advances furnished to make the crop grown by him; that the corn alleged to have been converted was yet all intact on defendant's premises where it was originally stored when taken, and that none of it had been consumed or. sold, The plaintiff separately objected to the offer to make such proofs, on the ground that it was irrelevant, immaterial, and was no defense to the action, which objections were severally sustained and defendant separately excepted. The court, at the request of plaintiff, gave the general affirmative charge in his favor, to which defendant excepted.

Jones & Mayfield, for appellant. Ormond Somerville, for appellee.

HARALSON, J. Trover is an action for a tort, and a set-off is not available in its defense. Russell v. Russell, 62 Ala. 48; Whitworth v. Thomas, 83 Ala. 309, 3 South. 781; Donohue v. Henry, 4 E. D. Smith, 162; McLean v. Hugarin, 13 Johns. 184; Keaggy v. Hite, 12 Ill. 99; Dole v. McGraw, 71 Mich. 106, 38 N. W. 686; Fishwick v. Sewell, 4 Har. & J. 409; Arthur v. Sylvester, 105 Pa. St. 233; 22 Am, & Eng. Enc. Law, 239, 240. The demurrer to special plea No. 1 was, therefore, properly sustained.

The other special plea, No. 2, has many of the elements of a plea in bar, and concludes as a plea of set-off or recoupment. If treated as one of the latter character, the demurrer to it was properly sustained; but if, a a plea in bar, and there was any error in sustaining the demurrer to it, it was error without injury, since it proposed no defense which was not available under the general issue, already pleaded, and on which the case was tried. A set-off is not available under the plea of the general issue, and the evidence offered by defendant and objected to, was properly excluded, since it was not applicable to any issue in the case. Code, § 2675; Odum v. Rutledge & J. R. Co., 94 Ala. 496, 10 South. 222; Slaughter v. Swift. 67 Ala. 494, 499. The uncontroverted evidence shows, that the defendant, without any legal proceeding, and against the protest and remonstrance of the plaintiff, seized and carried away all the cotton and corn which the plaintiff had raised that year. So far as

appears, the plaintiff had not asserted his possession of the property, in any manner to deny defendant's right or claim to it, as a cotenant with plaintiff, or for any lien he claimed on plaintiff's interest in it for advances. Defendant sold the cotton, and at the trial, proposed to prove he had not sold or used, but had the corn on hand, but denied that plaintiff was entitled to have any part of it, or that he had any right or interest in it. Such acts as these were a conversion, not only of the cotton which defendant had sold and the proceeds from which he had appropriated, but of the corn also, just as if he had consumed or sold it. He had no more than a parol mortgage, so far as it has been made to appear, on plaintiff's interest in the crops, for any advances he may have made to him; and, this was void, bestowing on him no legal or equitable title on plaintiff's share. Code, § 1731. He had no right, under any circumstances, against the consent of the plaintiff, to take and carry away all the crops, and for more than his share thus carried away, he is liable to the plaintiff. The court very properly charged the jury, that if they believed the evidence they must find for the plaintiff. The evidence shows very clearly, that plaintiff's judgment was for not more than his half interest in said corn and cotton. Affirmed.

RANDOLPH et al. v. STATE. (Supreme Court of Alabama. Feb. 8, 1894.) CRIMINAL LAW-SUFFICIENCY OF EVIDENCEVENUE.

1. Where there is no evidence that the crime was committed in the county, a motion by defendants, at the close of the state's testimony, for their discharge, should be granted.

2. A joint motion by two defendants for discharge, on the ground that there is no evidence connecting them with the commission of the offense, should be overruled when there is such evidence as to one.

3. On prosecution of a man and wife for burglary, evidence that some of the stolen property was found 13 months after the burglary in the possession of the wife, the husband being then in jail on another charge, was evidence to go to the jury; it further appearing that on a search of the house, just prior to the husband's arrest on such other charge, none of the stolen property was found. McClellan and Haralson, JJ., dissenting.

Appeal from circuit court, Wilcox county; John Moore, Judge.

William Randolph and Penny Randolph were convicted of burglary, and appeal. Reversed.

Upon the trial of the case, as is shown by the bill of exceptions, the state proved the corpus delicti. It was also further shown that the defendants resided about three-quarters of a mile from the store which was burglarized, and that tracks of a horse and mule were followed the morning after the burglary to the road leading in the direction of the defendants' house; that the defendant William

Randolph owned a mule at that time. It was also further shown that, the day after the burglary, the house of the defendants and other houses in the vicinity of said store were searched for the goods and merchandise stolen from the store, but none of said goods were found; that, about 12 or 13 months after the burglary was committed, several articles of merchandise stolen from said store were found in the dwelling house of the defendants; and that the defendant Penny Randolph made several conflicting statements in attempting to account for how she came in possession of said articles. The bill of excep tions then contains the following statement: "That the proof was that, at the time of the search when said goods were found in the house of defendants, the defendant Billy Randolph was not present, but was confined in the jail of Wilcox Co., Ala., on charge of another offense; that he was not present when his said wife made the statements attempting to account for the possession of said goods; that a few days before said search was made, in which said goods were found, a day or two after defendant was committed to jail, a prior search of said house was made, when none of said goods were found, the said goods having been found in the house after said defendant was committed to jail as aforesaid, and there being no evidence up to this time to show that any of said goods were ever in his possession, or in the possession of his wife, Penny, until after he had been put in jail as above stated." Upon this evidence, the state having announced that it had closed its case, the defendants moved the court that they be not required to further defend said case, and that the court excuse them from offering evidence to account for the possession of said goods, arguing to the court that there was not evidence enough to require them to offer evidence in defense, or to give an explanation of the possession of said goods, because said possession was not shown to be recent after the said burglary. The court overruled this motion, and decided that the defendants were placed upon their defense, and to this ruling the defendants excepted. The defendants then moved the court "to exclude all the evidence offered by the state from the jury, and to discharge the defendants," which motion the court overruled, and the defendants excepted.

Howard & Jones, for appellants. Wm. L Martin, Atty. Gen., for the State.

MCCLELLAN, J. William Randolph and Penny Randolph were jointly indicted, tried, and convicted of the offense of burglary of the store of one Cobb. The bill of exceptions recites that it contains substantially all the evidence in the case. It does not contain any evidence that the offense was committed in Wilcox county. The defendant William Randolph separately requested the court, in writing, to charge the jury "that they

must acquit him if they believe the evidence." The court erred in refusing this charge. One fact essential to guilt-the venue in Wilcox county-was not in evidence, and the effect of the court's action was to hold that the case was made out if the jury believed the evidence, though there was no proof, and they might not have believed, that the offense was committed in the county of the indictment. Bain v. State, 61 Ala. 75; Cawthorn v. State, 63 Ala. 157; Brown v. State, (Ala.) 14 South. 761. This error, however, is not one of which the other defendant, Penny Randolph, can complain. By the refusal of this charge to William Randolph the court did not pass upon the sufficiency of the evidence, if believed, to convict her, but at most, so far as this point is concerned, it can only be said that it does not affirmatively appear that the judgment as to her is supported by the evidence, and this is no ground for a reversal. "It does not lie within our province to grant new trials, in cases civil or criminal, because the verdict and judgment may not affirmatively appear to be supported by the evidence." Hubbard v. State, 72 Ala. 164, 169, 170. But this question was raised in behalf of both defendants by a joint motion on their part, made upon the close of the testimony for the prosecution, "to exclude all the evidence offered by the state, and to discharge the defendants." This motion should have been granted. The court's denial of it was to rule, in effect, that there was evidence which, if believed by the jury, would authorize a conviction; and this ruling was manifestly erroneous, for that there was no evidence of the venue, and the error was equally prejudicial to each of the defendants.

The other motion, made jointly by the defendants, on the express ground that the state had failed to adduce any evidence tending to connect them with the commission of the offense, was properly overruled. The motion was made by both defendants, and prayed the discharge of both. There was certainly evidence tending to connect Penny Randolph with the offense, in the fact that she had possession, though at the time remote from the crime, of some of the property carried away when the store was broken into, and that she gave directly conflicting, and therefore necessarily false, accounts of the source of her possession; and, whether there was any such evidence as to William Randolph or not, the motion was bad, and the court properly overruled it, since, conceding that the latter was not implicated, the motion was good as to him, and bad as to his codefendant, and not being good as a whole, as made, it was well denied as a whole. The court, moreover, is of the opinion (in which the writer does not concur) that the mere fact that some of the stolen property was found in the house of William Randolph 13 months after the burglary, in the possession of Penny Randolph, who was his wife, living in the house, (William at the time be

ing absent, confined in jail on another charge,) it further appearing that on a search of the house, made just prior to William's arrest on this other charge, none of the stolen property was found, was some evidence for the jury to consider in determining his guilt or innocence. 12 Am. & Eng. Enc. Law, 845; White v. State, 72 Ala. 195; Malachi v. State, 89 Ala. 134, 8 South. 104. In any view, however, the motion made here was well denied. Reversed and remanded.

OLDHAM v. MAYOR, ETC., OF BIRMINGHAM.

(Supreme Court of Alabama. Feb. 8, 1894.) CITY OF BIRMINGHAM - POLICE COMMISSIONERSBOARD OF ALDERMEN -POWER TO ABOLISH OFFICE-SERGEANT OF POLICE-SALARY.

cessors

1. Birmingham City Charter (Acts 1890-91, p. 114) empowers the mayor and aldermen to "appoint such officers as they may see fit," to "remove and discharge any of its officers and employes at pleasure,' to appoint and regulate policemen, and to maintain such a police force as they deem necessary. City Code authorizes the board to elect "such number of policemen as the board may see fit, to serve at the will of the board, for one year, or until their sucare elected and qualified." Act Dec. 12, 1892, (to establish a board of police commissioners for such city,) §§ 4, 5, make it the duty of such board to appoint such police officers and policemen "as is or may be prescribed by city ordinance," and to exercise full control thereof, "in conformity to existing laws and ordinances, and such as may be made," and empower it to suspend or remove any of such officers for failure to perform any duty, etc. Held, that the mayor and aldermen could abolish the office of sergeant of police, and that the salary of the person filling such office by appointment of the police commissioners thereupon ceased.

2. The provision inhibiting the diminution of the salary of police officers during "the term" does not entitle the officer to salary, after the office is abolished, to the end of the year for which he was appointed, since "the term" ends when the office is abolished.

3. The provision of Act Dec. 12, 1892, prohibiting the removal of policemen by the police commissioners, except for cause after due trial, does not affect the exercise by the city of its power to abolish offices.

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by John S. Oldham against the mayor and aldermen of the city of Birmingham to recover salary alleged to be due plaintiff as sergeant of police of such city. From a judgment for defendant, plaintiff appeals. Affirmed.

Cabaniss & Weakley, for appellant. H. C.. Selheimer, for appellee.

HARALSON, J. This is an action of as sumpsit by John S. Oldham, the appellant, against the mayor and aldermen of Birmingham, a municipal corporation, to recover the salary claimed by him as attaching to the office of sergeant of police for said city, which accrued to him from and after the 21st of June, 1893, and which was payable, as alleged, semimonthly. The facts in the

case are undisputed. It was tried on an agreed statement, subject to legal objections. The trial was by the court, without the intervention of a jury, and the judgment being for the defendant, on exception reserved to the conclusion and judgment of the court, an appeal is here prosecuted to reverse that judgment. The legislature, at its session of 1890-91, established a new charter for the city of Birmingham. Acts 1890-91, p. 114. Under this charter, the corporate powers of the city were vested in, and to be exercised by, a mayor and 10 aldermen, who constituted the governing body, called the "Board of Mayor and Aldermen," to be elected by the people on the first Tuesday in December, biennially. Prior to 1893, this board had power and control over the police force of the city. On December 12, 1892, the act of the legislature, entitled "An act to establish a board of commissioners of police for the city of Birmingham, Alabama," was approved, by which act, it was made the duty of this board to appoint such police officers and policemen as were or might be prescribed by the city ordinance. On the 12th March, 1893, the police commissioners, having been duly appointed, and qualified under said act, and proceeding thereunder, elected the police force for said city, consisting of a chief of police, a night captain, a day and night sergeant and 26 patrolmen, the day sergeant so elected being the plaintiff, John S. Oldham. These were the police officers and policemen at that time authorized by city ordinance. The board of mayor and aldermen of the city denied the right of said commissioners to elect a police force, and insisted that the then incumbents of police offices had the right to serve during the whole of 1893, (having theretofore been appointed by the city for the year,) and refused to recognize the rights of the appointees of the police commission, (including the plaintiff;) and the then incumbent of the office refused to vacate and yield it to plaintiff. Other appointees were in a like category. Litigation ensued between the appointees and the city, which was finally, on the 20th June, 1893, decided against the city, in the case of Fox v. McDonald, 13 South. 416, in this court. On the 21st of June, 1893, the board of mayor and aldermen adopted the following ordinance: "Be it ordained by the mayor and aldermen of Birmingham, that the offices of day and night sergeants are hereby abolished; that until the 1st day of January, 1894, the police department shall consist of one chief, one night captain, and twenty-six patrolmen." The plaintiff reported for duty to the chief of police, at 12 o'clock on the night of the 21st of June, 1893, who informed him of the passage of said ordinance, to abolish said office, adopted that night, and told him to await further action until they could, on the following day, consult their counsel, and until he could see the police commissioners; that on the following

day, June 22, 1893,-they conferred with their counsel and the police commissioners, and plaintiff went on duty at 6 o'clock a. m., June 23, 1893, and has since been performing his duties as day sergeant,-all of which was done under the direction of the chief of po lice. There was no dispute as to the time plaintiff served, or the value of the compensation, or as to his having made proper application to the mayor and aldermen to have his name put in the pay roll of the city, or to his having demanded, before suit brought, what he alleged to be due him. The city authorities refused to recognize him as one of the city police force, denied that they owed him anything, and refused to pay him. The sole question for review, as presented by plaintiff's counsel is,, "Did the mayor and aldermen of Birmingham have the power, on June 21, 1893, to abolish the office of police sergeant held by plaintiff, and thereby deprive him of his salary during his term, or can the ordinance of that date be accorded the effect of taking away said salary?"

1. Mr. Dillon states the rule to be, that “a municipal corporation may, unless restrained by charter, abolish an office created by ordinance, and may also, unless the employment is in the nature of a contract, reduce or otherwise regulate the salaries and fees of its officers, according to its views of expediency and right." (Italics his.) 1 Dill. Mun. Corp. §§ 231, 232; 19 Am. & Eng. Enc. Law, 526, 555.

2. It seems to be well settled, generally, that the power to create an office includes the power to destroy or abolish it, and that, whenever the people in convention or through the legislature, clothe any department of the government, or any of its boards, or officers, or municipalities with power, at discretion, to create an office, they clothe the body thus authorized, in the absence of a declaration of purpose to the contrary, with like power to abolish the same office. Benford v. Gibson, 15 Ala. 523; Ex parte Screws, 49 Ala. 65; Ex parte Lusk, 82 Ala. 522, 2 South. 140; People v. Jewett, 6 Cal. 691; Attorney General v. Squires, 14 Cal. 13; Ford v. Commissioners, 81 Cal. 19, 22 Pac. 278; Phillips v. Mayor, 88 N. Y. 245; State v. Kalb, 50 Wis. 178, 6 N. W. 557; State v. Smith, 65 N. C. 369; 19 Am. & Eng. Enc. Law, 526, 555, and authorities cited in notes.

3. There is in this state no constitutional inhibition to the abolition of offices created by statute, nor any protection extended to salaries attaching to such offices. Protection is extended only to such officers as are named in the constitution, whose offices cannot be abolished, and whose compensation is forbidden to be diminished during their official terms. Perkins v. Corbin, 45 Ala. 119; Ex parte Lambert, 52 Ala. 79.

4. The election of one to a municipal office, and his acceptance of it, cannot be regarded as an engagement or contract between the corporation and himself. He may resign at

« PreviousContinue »