Legal Opinion

Garden v. Houston Bros.

Supreme Court of Alabama

Decided November 11, 1909PublishedCited by 3 opinions

Appeal from Walker Circuit- Court. Heard before Hon. J. J. Bat. Action by Houston Bros, against M. Garden. From a judgment for plaintiffs, defendant appeals. -The action was for tlie taking of a horse, and the defense attempted to be pleaded was that the taking was done under a bill of sale retaining title to the horse, etc.

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Appeal from Walker Circuit- Court. Heard before Hon. J. J. Bat. Action by Houston Bros, against M. Garden. From a judgment for plaintiffs, defendant appeals. -The action was for tlie taking of a horse, and the defense attempted to be pleaded was that the taking was done under a bill of sale retaining title to the horse, etc. The defendant also offered to file a plea of set-■off, which the court refused to allow; but this effort is shown only by the record, and not by the bill of exceptions. The evidence tended to show that the horse was taken by one N. Garden, brother of the defendant, and…

1Opinion of the CourtMcCLELLAN, J.

Trespass and trover. The defendant (appellant)' pleaded his right to retake the animal in question under an instrument showing a conditional sale thereof to the plaintiff. One of the issues of fact on the trial was payment vel non of the notes before the taking. This the court properly submitted to the jury. Another was the agency vel non of the defendant’s brother in taking the animal as and when he did. The defendant admitted, testifying as a witness, that he sent his brother to get the horse. This admission, of course, avoided any error, if any, in allowing questions tending to elicit…

2Cases cited4 opinions

  1. Lienkauf & Strauss v. MorrisSupreme Court of Alabama · 1880
  2. Hicks Bros. v. Swift Creek Mill Co.Supreme Court of Alabama · 1901
  3. Pollack v. Gunter & GunterSupreme Court of Alabama · 1909
  4. Baker v. BurdeshawSupreme Court of Alabama · 1902

3Cited by3 opinions

  1. Investment Securities Corp. v. ColeCourt of Appeals of Georgia · 1937
  2. Alabama Penny Savings Bank v. HolmesSupreme Court of Alabama · 1913
  3. General Outdoor Advertising Co. v. KendrickSupreme Court of Alabama · 1931

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