Opinion
7 Div. 937.
May 9, 1918.
Appeal from Circuit Court, Clay County; Leon McCord, Judge.
Lackey Rowland, of Ashland, for appellant. Riddle Riddle, of Talladega, for appellee.
It is first insisted by counsel for appellant that the court erred in refusing in the oral instruction to charge the jury that, if they found for the plaintiff under the first count of the complaint, they must find for the specific property sued for, or its alternate value. Evidently counsel intend to insist upon the failure of the court in the oral charge to use this specific language, as there is nothing in the record to indicate any refusal of the court to do so. No charge refused to the defendant, as found in the record, has reference to that matter, and no exception was reserved to any portion of the oral charge of the court. Clearly, therefore, this insistence is without merit.
It is next urged that reversible error was committed in overruling the objection to the question "What is the highest market price of cotton seed in Ashland since this suit was filed?" The ground of the objection is single, and was as follows: "This action was in detinue, and the value of the property at the time of the filing of the suit is the measure." Count 1 of the complaint is in trover, and there was no error therefore in overruling this objection. McGowan v. Lynch, 151 Ala. 458, 44 So. 573.
As to the other charges refused to the defendant, the argument proceeds upon the assumption that the plaintiff has brought suit upon what is called in this record the "scale tickets," and as the same were marked non-negotiable, and not transferred in writing, therefore the plaintiff is without title and cannot maintain the action. In our opinion, this is a misconception of the evidence presented. We think the testimony clearly shows that these tickets were mere evidences of the amount of seed in the possession of the defendant company, of which the said company was the bailee. Riddle v. Blair, 148 Ala. 461, 42 So. 560; Id., 163 Ala. 314, 51 So. 14. The evidence shows without dispute that the plaintiff purchased the seed, and being personal property was, of course, subject to a verbal sale, and no writing was necessary to pass the title. Riddle v. Blair, supra.
The evidence further shows without dispute that the original owner of the seed left the same at the defendant's mill, and subsequently sold the seed here in question to plaintiff; that he made no agreement of sale whatever with the defendant company, or agreement as to deduction for shrinkage, or any agreement of like kind. After the seed were stored the farmers were merely handed these tickets in the printed form, as indicated in the statement of the case. It does not appear that their attention was directed to the matter printed at the bottom of the ticket, or that they had any information as to the same. Indeed, the testimony of the manager for the defendant company to the effect that he offered to buy the seed from the plaintiff, less the 5 per cent., tends very strongly to show that it was not considered that any sale had in fact been made. For the purpose of making a sale or valid contract, there must be a meeting of the minds of the contracting parties, and clearly what was here done, under the undisputed evidence in this case, created neither a sale or any binding contract as to a deduction for shrinkage. The case of Tabler v. Sheffield L. Co., 79 Ala. 377, 58 Am. Rep. 593, cited by counsel for appellant, is without application to the instant case, as is readily disclosed by an examination of that authority.
We do not treat the refused charges separately, as what we have here said sufficiently indicates that no error was committed in their refusal.
There remains only one other question argued in brief, relating to the objection to a question asked on cross-examination, which we consider so entirely free from prejudicial error as not to call for separate treatment here, though it has been given careful consideration in consultation.
We find no reversible error in the record, and the judgment appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.