This is a suit by the plaintiff, the First National Bank of Gadsden, Ala., against the defendant A. C. Howard and others, based upon a check or bill of exchange executed by the defendants to the Gadsden Brokerage Company, and indorsed by this concern to the plaintiff, which the plaintiff claims was in due course of business, and for a valuable consideration.
In addition to pleading the general issue, the defendants pleaded some five special pleas. In pleas Nos. 1, 2, and 4, the defendants offer the defense of a failure of consideration of which plaintiff knew or helped to effectuate. These three pleas were not subject to the grounds of demurrer interposed.
In pleas Nos. 3 and 5 the defendants make the further defense that the plaintiff converted to its own use, or deprived the defendants of, the carload of cotton seed hulls that they purchased from the Gadsden Brokerage Company, and for which the check that constitutes the basis of this suit was given, and offer to set off against the demands of the plaintiff the value of the cotton seed hulls, alleged to have been appropriated by the plaintiff and asked judgment for the excess. The grounds of demurrer interposed to these two pleas were without merit, and were properly overruled.
Since the third and fifth pleas in this cause are the only ones which claim damages by way of set-off against the plaintiff, and since the verdict of the jury was in favor of the defendants for the sum of $51 over and against the plaintiff for the excess amount that was due the defendant by way of set-off or recoupment, the finding of the jury is necessarily in favor of the plaintiff on pleas Nos. 1, 2, and 4, and is only in favor of the defendants on the third and fifth pleas. If there was any error in the ruling of the trial court on pleas Nos. 1, 2, and 4, such error, therefore, would be without injury to the plaintiff, as the jury in effect at least found the issues in favor of the plaintiff on these three pleas. The issues in this cause can, therefore, be narrowed to the discussion of the propositions arising out of pleas 3 and 5.
There was sufficient evidence in this cause tending to show that the defendants purchased the carload of hulls from the Gadsden Brokerage Company in bulk, and that title to the same vested in the defendants, and also that the defendants executed and delivered their check to the Gadsden Brokerage Company in payment of the carload of cotton seed hulls, and the check was delivered and accepted with the understanding that the carload of cotton seed hulls was to be the property of the defendants.
The most serious assignments of error, and those that are most strongly insisted upon by the plaintiff's counsel, are the ones based upon the sufficiency and relevancy of the proof of the defendants' pleas 3 and 5 which are pleas of set-off or recoupment. The burden was on the defendants to establish the material averments of these two pleas. We do not think that the defendants have met the measure of proof required of them to do so. It was necessary for the defendants to show that the plaintiff had converted or appropriated the cotton seed hulls in question to its own use or so as to deprive the defendants of their right to possession of the same.
While it is true the evidence shows that Mr. Norton "of the First National Bank" went to the mill or warehouse of the Gadsden Brokerage Company, and requested the superintendent, Mr. Pierce, of this concern not to deliver to anybody any other hulls and the evidence further shows that Gillem Jordan hauled away all of the cotton seed hulls, excepting what had been delivered to the defendants, under some process of some court, however, the evidence in this case does not show that Mr. Norton, though an employee of the plaintiff, had any authority from the plaintiff to forbid the Gadsden Brokerage Company to make delivery of the cotton seed hulls to the defendants or any one else. The expression "of the First National Bank" is not sufficient in itself to show that Mr. Norton was acting for the bank. The expression is largely *Page 366 one of identification of Mr. Norton. While it may be true that the plaintiff did get possession or assume control over the cotton seed hulls in question, yet we are unable to say, after careful reading of all the evidence, that it is disclosed by the testimony that the plaintiff ever took possession of or assumed dominion or control over the cotton seed hulls to the exclusion of the defendants, and thereby deprived the defendants of the possession or the right to possession of the cotton seed hulls.
To sustain a recovery for the conversion of property, it is necessary for the aggrieved party to either show the destruction of his property, or such interference therewith as to amount to a disregard or a defiance of the owner's rights in such property. It is true that a conversion need not extend to a physical taking of the property, but there must be at least some positive or tortious act that prevents the owner of the property from exercising dominion or control over the same. Mere words or declarations, while they might be admissible as evidence, will not in themselves alone amount to a conversion. It is necessary to show more. See Rogers v. King, 151 Ala. 628,44 So. 655. Having the above principles of law in mind, we have come to the deliberate conclusion that there is a failure of proof of the defendants' pleas 3 and 5, and that no conversion is shown in this case. For aught that appears from the record in this cause, the plaintiff may have started an orderly, legal procedure to test the title to the cotton seed hulls. The court should have given the general charge in favor of the plaintiff as to pleas 3 and 5.
In reference to the assignments of error based on exceptions to certain portions of the oral charge of the court to the jury, it is true that some of these portions objected to are somewhat involved, and expressions used in them are somewhat inapt, yet, when all of these portions of the charge are taken together, and construed with the entire charge, we are of the opinion that the jury was properly instructed as to the issues raised by the pleadings in this case.
In view of the foregoing, it is not necessary to discuss the other assignments of error. For the error pointed out, the judgment of the trial court is reversed, and the cause is remanded.
Reversed and remanded.