Louisville & Nashville R. R. v. Kauffman & Co.

141 Ala. 671

• Court: Supreme Court of Alabama
• Decided: November 15, 1904
• Status: Published

Opinion

McCLELLAN, C. J.

On the testimony of Kauffman, the transaction between his firm and Carretti was a sale on approval, that is, it was to become a sale if Oar-retti upon receiving the whiskey and examining and testing it should he satisfied with its quality. ‘Till then the title remained in Kauffman & Company. Carretti never did receive the whiskey, nor examine it nor test it. The title, therefore, could not have passed to him, but continued in Kauffman & Company, and, of course, entitles them to recover in this action of trover, so far as that point is concerned. — 6 Am. & Eng. Ency. Law, pp. 462, 466 and notes.

To make cut the alleged conversion- it was upon the plaintiff to prove a demand for'the property on the defendant and a refusal by the defendant to surrender it. As to the demand the evidence is in direct conflict, one witness testifying that he made the demand for the plaintiff being himself one of them, on the agent of the defendant having custody of the property, and this agent testified that no demand was made upon him. A part of this evidence was oral, and Ave are unable to affirm that the court, trying the case Avithout a jury, erred in the: conclusion that a demand was made. Considering demand, therefore, as a fact proved, the further undisputed fact that the property Avas not and never has been delivered to the plaintiff hut Avas in defendant’s possession at the time of the trial, fully justified the court in the conclusion that the defendant in response to the demand refused to surrender the property.

Affirmed.

Haralson, Doaa'dblí;/'and Denson, J.J., concurring.