The appellant's respectful and earnest insistence, that evidence adduced by it on the trial necessitated a submission of the issues to the jury, and error intervened when the court directed a verdict for the defendant, has impelled us to re-examine the question on the points made by the application for rehearing.
One contention is that courts are bound to take judicial knowledge of the custom that obligations for the payment of rent for farm lands are usually discharged in the early fall, and, although the evidence does not show when the cotton was delivered to the defendant by the tenants on the Strudwick plantation for the year 1930, and this fact being a fact within the knowledge of the defendant, it must be assumed, in the absence of evidence, that the particular cotton was delivered according to the custom in the early fall; and this custom, considered in connection with the fact that defendant, during the fall of 1930, by letters written by its agent and attorney demanding that defendant pay over or deliver the rent received by him from said plantation for said year, to which he made no reply and which he did not deny receiving, was evidence tending to show that the cotton was received by the defendant in the fall of 1930, and that he had disposed of the same, presenting a question for the jury. *Page 147
While it is well settled, "That courts take judicial knowledge of what everybody else is presumed to know, and juries are permitted to find such fact, without specific proof" (3 Mayf. Dig. page 437, § 3); yet courts do not take judicial knowledge of particular transactions between private parties. Therefore, while it might be permissible for the court to take judicial knowledge of the prevailing custom of the county and the crop seasons (Loeb Weil v. Richardson, 74 Ala. 311), it was not permissible for the court to take judicial knowledge of a fact that may be disputed by competent evidence, or for the jury to find the fact in the absence of evidence.
Nor do the letters referred to aid the situation. There was no contractual relation between the plaintiff and the defendant. They fall within the general rule, "that a party cannot make evidence for himself by his written communications addressed to the other party, as to the character of dealings with them, or the liability of the party to whom they are addressed, in the absence of any reply assenting to the same." Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86,91. Their only evidentiary value was to show that demand was made before suit brought, and its character.
The next contention is that the stipulation of facts shows, that while one of the tenants, Henry Bell, did not pay Smith anything in property or money as rent, it does show that "Taylor, who had taken over and was advancing for the said Henry Bell, took up his rent note and other papers, and paid the said Smith the amount that the said Henry Bell owed; and the said Smith thereupon delivered all of the said Henry Bell's papers to the said Taylor"; and also shows that defendant "received twelve bushels of corn of the value of $6.00 from Bert Lawless and George Duncan, 'said corn having been received by the said Smith as rent,'" and therefore plaintiff was entitled to recover the amounts represented in the transaction between Taylor and defendant, and in the transaction between Lawless, Duncan, and defendant, on the well-settled principle, that where one person tortuously obtains possession of the property of another, and refuses to surrender its possession on demand of the owner, if it be money, may waive the tort and sue for money had and received; or, if it be chattels, he may waive the tort and treat the transaction as a sale and delivery of goods and recover their reasonable market value. Bradfield, Morson Co. v. Patterson, 106 Ala. 397, 17 So. 536; First National Bank of Decatur v. Henry, 159 Ala. 367, 49 So. 97; Note 17 Ann. Cas. 975-977.
The clear import of the stipulation of facts as to the transaction between Taylor and the defendant is that Taylor took over Bell's obligation, and the money paid by Taylor to defendant was neither the money of the plaintiff nor Bell; nor was it rent; nor was the corn which Lawless and Duncan delivered to defendant "as rent" the property of the plaintiff. The legal title to the corn, we must assume, was in Lawless and Duncan, and passed to Smith.
The principle invoked here only applies when the defendant tortuously takes property of the plaintiff; that is, property to which plaintiff holds the legal title.
A different rule applies where the plaintiff only has an equitable title or statutory lien. In that case he must show that the equitable title or lien has been destroyed by a disposal of the property, its consumption, or by intermingling so as to destroy its identity. Moody v. Walker, 89 Ala. 619,7 So. 246; Ehrman v. Oats, 101 Ala. 604, 14 So. 361; McCarty v. Roswald Co., 105 Ala. 511, 17 So. 120.
The application is overruled.
ANDERSON, C. J., and THOMAS and FOSTER, JJ., concur.