Ve propose not to consider any question raised on the affidavit or writ of attachment, or on the motion made in the court below, to reject the complaint as not supported by the affidavit. If there ever was anything in • either one of these objections, it has been waived and healed by appearance by defendants, setting the case for trial on issues of fact, and by taking testimony for the defense ; all of which was done before the motion was made.—Marshall v. White, 8 Por. 551; Jordan v. Hazzard, 10 Ala. 221; 1 Brick. Dig. 164, §§ 145,146,147; Watson v. Auerbach, at present term.
Moreover, there is no question reserved by exception to this ruling. This itself is fatal.—Stewart v. Goode, 29 Ala. 476 ; Jarman v. McMahon, 37 Ala. 431.
Pleadings are statements of the facts involved in the issue, ;&nd need not contain the evidence which supports them. *154They “ must be as brief as is consistent with perspicuity, and the presentation of the facts or matter to be put in issue in an intelligible form; no objection can be allowed for defect' of form, if facts are so presented that a material issue in law or fact can be taken by the adverse party thereon.” — Revised Code, § 2629. They must not be “’unnecessarily prolix, irrelevant, or frivolous,” and if so, “ may be stricken out at the cost of the party so pleading.” — Revised Code, § 2630. The forms given in the Revised Code, p. 673, are samples of brevity, furnished by the legislature itself. When the gravamen of the action is the alleged' non-feasance or misfeasance of another, as a general rule, it is sufficient if the complaint aver facts out of which the duty to act. springs, and that the defendant negligently failed to do and perform, &c.; not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty. What the defendant did, and how he did it, and what he failed to do, are generally better known to the defendant than to the plaintiff; and hence it is, that in such cases, a general form of averment is sufficient. 1 Chit. PI. 336.
We think the complaint in the present case is sufficient, and that the demurrer to it was rightly overruled.
The title to goods shipped — the right to demand and receive — as a general rule, vests, on shipment, in the consignee. To him, prima facie, is the carrier responsible for safe delivery. His promise, though often made to another, is to deliver to the. consignee.—Jones v. Sims, 8 Por. 138 ; Ezell v. English, ib. 311; Cox v. Early, 11 Ala. 362; McGill v. Monette, 37 Ala. 49; M. & W. P. R. R. Co. v. Edmonds, 41 Ala. 675-6.
In the present case, the cotton was shipped from Mobile, to the consignees in Liverpool, England, to be there received and sold for account of the owners in Mobile. The consignees were commission merchants, knew of the shipment, were in possession of one of the bills of lading informing them of the number of bales shipped, and actually received from the vessel seventy-six of the eighty-five bales which the bill of lading called for. The consignees demanded the missing bales of the captain of the vessel, and were informed by him that the marks on the nine bales, and on other bales shipped by the same voyage, had become so obliterated that they could not be distinguished, thus producing a confusion of goods; that he had all the goods shipped, but could not separate the several lots. All the testimony bearing on the *155question shows that the ship-captain thereupon proposed, or announced his purpose to sell the confused cotton at auction, and to account for the proceeds to the different owners pro rata. The testimony tends to show that the consignees acquiesced in this; for they not only made no effort to prevent it, but so far as we are informed, did not object to it. Moreover, they gave as an excuse for not resorting to other means of diligence, that they thought they could indemnify themselves from another quarter, which, however, failed.
We hold that, situated as shipper and consignee were in this case, it was the duty of the latter to take such steps to obtain possession of the cotton or its proceeds as an ordinarily prudent man would have taken to possess himself of his own goods, similarly circumstanced. The goods were consigned to him, to be sold by him. The consignors did not confide in the ship-captain to make sale and account. We feel bound to hold, if the testimony truly represent the transaction, that in making the sale, the ship-captain must be treated as the agent and employe of the consignees, and that the doctrine of respondeat superior fixes the measure of the latter’s liability.
Again, the confusion of the goods did not cause them to pass into the bankrupt effects of the ship-owners. They still remained the property of the several owners, and on proper proceedings, such property and its proceeds could have been saved to its rightful owners. It was the duty of the consignees to look to this. — 1 Sto. Eq. Ju. § 623; 1 Bouv. Ins. § 506-7; Abbott on Ship. 325; 3 Dane’s Abr. 119, ch. 76, art. 5, § 19; Edw. Bailments, 117 ; Sto. Bailments, § 40; Edw.’ Bailments, 81-2; Byron v. N. Y. St. Pr. Tel. Co. 26 Bush, 39 ; Adam’s Eq. Marg. 237-8.
We have omitted to notice the fact that the consignees held, a mortgage on the vessel on which the cotton was shipped, for a sum greater than the vessel yielded when sold. This furnishes an additional reason why they should have taken prompt measures to secure the cotton for their customers.
We have indulged in these remarks, not because we are judges of the facts, but to bring out the material points on which the jury should have been instructed, so as to direct their attention to the proper phases of the transaction on which diligence should have been exercised.
The exception to the affirmative charge was as a whole. To many of its separable propositions, no objections have been urged. This might be a sufficient answer to this exception. But we think the charge, as a whole, is free from error.
*156The charge refused (number four) should not have been given. Under the facts of this case, it was well calculated to mislead, if it was not wrong in its assumption. The cotton was there, and legal proceedings could have prevented it from going into the bankruptcy, even if the ship-owners became insolvent before a judgment could have been recovered. If no other remedy existed, the court of chancery •could have seized and preserved the goods, and could have administered complete justice.
"We consider no other question, for none other has been ..argued.
Affirmed.