Mobile J. & K. C. R. R. v. Bay Shore Lumber Co.

48 So. 377, 158 Ala. 622, 1908 Ala. LEXIS 642

• Court: Supreme Court of Alabama
• Decided: November 19, 1908
• Status: Published

Opinion

McCLELLAN, -J.

Plea 2, as originally filed, and as amended after demurrer sustained, sought to invoke, against a recovery by plaintiff in its action for the conversion by defendant of the lumber described in the complaint, in that it was wrongfully delivered by defendant, a common carrier, to the custody of which for transportation to plaintiff it was committed, an estoppel by act or misrepresentation under a custom known to plaintiff and prevailing between these parties in the delivery of lumber consigned to plaintiff at Mobile. The principie indicated by our statement is, of course, familiar, and is a defense when the facts squaring to the principle —founded as it is in common sense and justice — are specially pleaded and sustained in the proof. — Jones v. Peebles, 130 Ala. 269, 30 South. 564; Goetter v. Norman, 107 Ala. 586, 19 South. 56; Turner v. Flinn, 72 Ala. 532; 16 Cyc. p. 680, subhead 2; Id. p. 681, subheads 7 and 8, and notes. These pleas were respectively subject to the ninth and fifteenth grounds of demurrer, as directed against them, respectively. Both pleas are silent in identification of the material contained in the cars as being that described in the complaint; and this -point the mentioned grounds of demurrer took. The demurrers were, of course, properly sustained.

Looking to another trial, to Avhich we must remand, avo have considered the other grounds of the demurrers to these pleas, and are of the opinion that none of them, save those mentioned before, are well taken. The pleas are sufficiently definite in averment of the action alleged to have induced the surrender of the cars, and, if the material alleged to have been converted was then contained in the cars so delivered, and the averments of fact made are sustained to the requisite degree, the plaintiff cannot recover. — Authorities supra.

The complaint alleges the conversion to have been effected on December 6, 1906. The testimony of the witness Bates, tending to sIioav that the cars were delivered on that day, was on objection excluded by the court, evidently upon the sound ground that the testimony was not only hearsay, but that the record, of the contents of which he proposed to speak, Avas the best evidence. The only other testimony touching at all the date of the alleged conversion was that of Shaver, who testified that the car (apparently car No. 242) was received by the Lewis Land & Lumber Company on December 13, 1906, a date different from that designated in the complaint. That such a variance, as indicated, ivas fatal to a recovery, is expressly decided in Williams v. McKissack, 125 Ala. 544, 27 South. 922. No good reason-has been suggested or occurs to us why that ruling should be repudiated. It is in accord with the strictness with which this court has always enforced the principle of conformity of pleadings and proof. The averment fixing the date of the conversion on December 6, 1906, was, in our opinion, material, and, having called the defendant to defend a wrong alleged to have been inflicted on that date only, the consequences of a failure of proof to sustain it, or of a variance in the premises, cannot be now obviated, as the complaint is at present written.

The judgment is reversed, and the cause is remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.