The evidence affords an inference that the cotton was never delivered to the plaintiff, and it also affords an inference that the cotton may have been delivered to another than the defendant. In this state of the case, it was a question for the jury as to whether or not there was a conversion of the cotton by the defendant. No demand was necessary.
For the same reason the affirmative charge for the defendant was properly refused.
The defendant also excepted to a portion of the oral charge of the court. If the defendant had a lien on the cotton, for ginning, yet the evidence shows without dispute that if a demand was made, there was an unqualified refusal to deliver the cotton; and this was a waiver of the lien as defensive matter.—Spence v. McMillan, 10 Ala. 583.
Affirmed.
Tyson, C. J., and Simpson and Denson, J.T., concur.