Justice Gray in Clark v. Wilson, 103 Mass. 219, a decision useful on both branches of the question argued before us. The learned judge says:

"A transfer of property from a rightful owner out of possession will doubtless pass the title and enable the assignee, upon demand and refusal, to sue a wrongful holder, in trover, as for a new conversion (citing Tome v. Dubois, supra, and other cases); but it does not destroy the right of action for the previous tort, nor, if the property has meanwhile been diminished in value by the act of the wrongdoer or otherwise, lessen the measure of his liability; nor can it consistently with the rules of the common law transfer a personal right of action, for a tort, to one who at the time of its commission was not the party injured, so as to enable him to sue for the tort in his own name."

The decision supported a suit in trover in the name of the former owner who was such at time of conversion, asserting, however, the right to control it in the interest of the person really entitled to the damages.

The demurrer will be sustained, with leave to the plaintiff, on payment of costs, to amend either by a change, in the summons and declaration, of the name of the plaintiff, or by a change in the allegation of the declaration from one of conversion before to one of conversion after the accrual of the plaintiff's title, if the fact so warrants, and otherwise as he may be advised.

APPEAL from Circuit Court, Marengo County; W. W. QUARLES, Special Judge.

Action by Josh Dixie against W. C. Harrison. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The special pleas are as follows: "(3) That the plaintiff voluntarily surrendered the mule, for which damage is now sought, to the defendant.

(5) That defendant sold mule in controversy to one J. M. Moore, and took a mortgage on the said mule for the purchase money, and that when said mortgage became due the said Moore defaulted in the payment of the same, and that the defendant sent his agent to the said Moore, after the maturity of said mortgage, for the mule, and that the said Moore told his said agent that the plaintiff then had said mule, and for the agent to return the following day and he could get the mule; that the said agent did return the day following; that Moore then informed him that the plaintiff had said mule, and to go and get him; that said agent went to the plaintiff, and told plaintiff that he had come for the mule, whereupon plaintiff gave the said agent of the defendant

the said mule of his own accord and voluntarily. (6) That the defendant surrendered possession of the said mule to the plaintiff voluntarily, and that prior to any demand for the return of said mule and to the bringing of this suit, and before the defendant knew the plaintiff claimed said mule, the defendant sold said mule, and does not now know where said mule is; that plaintiff surrendered said mule in the first part of the year 1906, and did not make a demand upon defendant for the same until more than six months thereafter."

Motion was made to strike these pleas, and after it was overruled the following demurrers were filed: "(1) The pleas are no defense to this suit. . . . (4) Because plea 5 does not allege that plaintiff had knowledge of the mortgage taken by the defendant to secure the purchase price of said mule, and does not allege that same was recorded before plaintiff purchased said mule. . . .'

George Pegram, for appellant. Elmore & Harrison, for appellee. MAYFIELD, J. The complaint in this cause, as last amended, consisted of six counts, designated as 1, 2, 3, 4, A, and B. Counts 1, 2, and 3 were in trespass, for the wrongful taking of one bay mare mule. Count 4 was in trover, for the conversion of the same mule. Counts A and B were also in trespass, count A setting up the facts constituting the trespass. To this complaint defendant filed six pleas. . The plaintiff moved to strike the special pleas 3, 4, 5, and 6 upon the grounds set up in the motion. The Court overruled the motion, and the plaintiff excepted. The plaintiff then demurred to pleas 4, 5, and 6, which demurrers, being duly considered, were overruled by the Court. The pleas and demurrers were refiled after the complaint was amended, with the same action, as to the amended complaint and the pleas and demurrers thereto. The trial was had upon the general issue and these special pleas, and resulted in a verdict and judgment for the defendant, from which plaintiff appeals. . .

Upon the undisputed evidence in this case the plaintiff was clearly entitled to the general affirmative charge upon the count in trover; the special pleas being eliminated, as they should have been, upon the motion or demurrer of the plaintiff thereto. The evidence is undisputed that the plaintiff purchased the mule in question from one Moore; that Moore had purchased the mule from the defendant prior to the time he sold it to the plaintiff; that Moore executed to the defendant a mortgage upon the mule to secure the purchase price; and that this mortgage was not recorded until after the mortgagor, Moore, had sold the mule to the plaintiff, and there is no evidence that the plaintiff had any actual knowledge or notice of the existence of this mortgage at the time he purchased the mule. Section 1009 of the Code of 1896 provided, among other things, that conveyances of personal property to secure debts or to provide indemnity were inoperative against creditors or purchasers without notice until recorded, etc. He was clearly a bona fide purchaser for value without notice of the mortgage, and the facts are un

disputed that the defendant sent an agent and took the mule from the possession of the plaintiff after his title was perfect thereto, and that defendant afterwards converted the mule by selling it or otherwise disposing of it. . . .

There is no phase of the evidence which tends to show that the plaintiff in any way estopped himself from maintaining this action. The testimony of the defendant's son upon this subject is as follows: That he went to the plaintiff and asked for the bay mare mule which Mr. Moore told him to get from Josh, and that Josh, the plaintiff, delivered the mule into his possession of his own accord and voluntarily; that witness then took the mule and delivered same to defendant. The testimony of the plaintiff upon this subject is as follows:

"Mr. Neal Harrison (son of defendant) rode up to where the mule was, and caught hold of the bridle, and commenced unhitching her, and took her out of the plow. I went up there where he was, and asked him what he was doing. He said his papa sent him after the mule. I told him that the mule was mine, and that I had paid Mr. Moore, and he said he was going to take the mule, and I helped him unhitch her then because I did not want to be bothering any white folks."

This was all the evidence as to the taking. The defendant, among other things, testified that after his son delivered the mule to him he kept the same five or six weeks, and then sold her for $100, and that he received a letter from Josh Dixie, the plaintiff, asking him to pay for the mule or to return it. . .

The trial Court, at the request of the defendant in writing, charged the jury, first, that unless a demand was made on defendant before the commencement of the suit the plaintiff could not recover for conversion; and, second, that, if the mule was freely and voluntarily delivered to Neal Harrison by plaintiff, then he could not recover in trespass. Both of these instructions were erroneous.

1. Under the undisputed facts in this case, no demand was necessary to support trover. Even if it had been a case in which a demand was necessary the undisputed evidence showed that there was a sufficient demand (see defendant's own testimony, where he says that he received a letter from Josh Dixie asking him to pay for the mule or return it). But a demand in an action of trover is only necessary where the taking was rightful, and where a demand and refusal are necessary to constitute a conversion. This was clearly not a case in which any demand was necessary, nor does it constitute a waiver of the right of action to demand payment for property converted. Baker v. Hutchinson, 147 Ala. 637, 41 South. 809; Williams v. McKissack, 117 Ala. 441, 22 South. 489. In actions of trover, where there has been a wrongful assumption of property by the defendant which is of itself a conversion, no demand is necessary before suit brought. Brown v. Beason, 24 Ala. 466; Rhodes v. Lowery, 54 Ala. 4.

2. The Court was also clearly in error in charging the jury that, if

the plaintiff freely and voluntarily delivered the mule to the agent of the defendant, then he could not recover in trespass. The mere fact that the plaintiff did not resist or object to the taking could not make the taking rightful which was otherwise a trespass. If the plaintiff had induced the defendant to take the property, then it would be a defense to trespass; but there is no evidence tending to show that he induced the taking. The strongest phase of it is that he did not resist or object. Smith v. Kaufman, 94 Ala. 364, 10 South. 229. For this reason special pleas Nos. 3, 4, and 6 were wholly insufficient. Plea No. 5 was also insufficient for the reason that it did not deny the plaintiff's title to the mule, the subject-matter of the suit, nor did it show that the mortgage under which the defendant claimed title was recorded prior to the acquisition of the plaintiff's title, nor did it show that plaintiff had any actual notice of the mortgage. As stated above, it would not have been error to strike pleas 3, 4, and 6 from the record upon the motion of the plaintiff; and, while it might not have been reversible error for the Court to refuse the motion to strike and thus put the plaintiff to a demurrer, it was clearly reversible error to refuse the motion to strike and to overrule the demurrers thereto, and allow the cause to be tried upon wholly immaterial issues such as these pleas raise.

It is not necessary to consider the other assignments of error, which will probably not be raised upon another trial. For the errors mentioned, the judgment is reversed, and the cause is remanded. Reversed and remanded. DOWDELL, C. J. I concur in the conclusion to a reversal of the judgment, but do not concur in all that is said in the opinion of Justice MAYFIELD. I place my concurrence upon the ground that on the undisputed evidence in the case the plaintiff was entitled to the general charge as requested under the count of the complaint in trover.

.

SIMPSON and MCCLELLAN, JJ., concur in these views.

TROVER for timber which defendant found on his premises, and which had been deposited there by permission of the servant of the former occupier. The plaintiff, to whom the timber belonged, having demanded it of the defendant, the latter said, "If you will bring any one to prove it is your property, I will give it you, and not else."

Lord ELLENBOROUGH, C. J. This is a qualified refusal, and no evidence of conversion. Plaintiff nonsuited.1

1 [BRAMWELL, B., in Burroughs v. Bayne (1860. 5 H. & N. 296). In such case, it would be monstrous to hold that a man had not a right to make reason

312. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. JORDON STOCK FOOD COMPANY

SUPREME COURT OF KANSAS. 1903

67 Kan. 86, 72 Pac. 533

IN BANC. Error from District Court, Shawnee County; Z. T. Hazen, Judge. Action by the Jordon Stock Food Company against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

BURCH, J. Certain goods were in the possession of a commission merchant for sale on the owner's account. A person without title or authority procured them to be consigned to him at Topeka, via the railroad of the plaintiff in error, at which place they were unloaded and placed in the railroad company's warehouse. The interloping consignee then directed the goods to be shipped to a point beyond the State, paid the freight, and was given a bill of lading. Before the goods were reshipped, an authorized agent and attorney of the owner discovered the goods, claimed them for his principal, and demanded possession of them from the carrier. The demand not having been complied with, the owner brought an action of replevin for his property, but obtained no order for its delivery to him. Three days later the carrier forwarded the goods in accordance with the shipping directions it had received, and its bill of lading previously issued. The carrier was ignorant of who the true owner was, except as advised by the demanding agent, and was ignorant of that person's authority, except as disclosed by his own representations. What was the right of the owner, and the duty of the carrier, under these circumstances?

The position of the railroad company was one of great hazard and embarrassment. It was liable to be mulcted in damages if it wrongfully refused to carry and deliver the goods under its contract with the shipper, and it was without any adequate means or opportunity of knowing definitely who the true owner might be. The law, however, must always aid the true owner in the recovery of his property, and he cannot be deprived of it by means of any contract relation between a wrongdoer and the carrier. When, therefore, the owner did appear and demanded his goods, he was entitled to their immediate delivery, and it was the duty of the possessor to make it. The solving principle to be applied to such a state of facts is expressed in the following texts, where the English and American cases are collated. . . .

able inquiries. It cannot be, that if I pick up a watch in the street, and another person says, "That is mine," I am bound at once to deliver it up. I may say, "It may be [yours], but I will not give it to you before you tell me the name of the maker; and, if he thereupon walked away, it cannot be that he would have a right of action against me simply because I exercised a sound discretion. If such were the law, I should be sorry for it; but I do not believe it is.]