Sorsby v. Wilkerson
Sorsby v. Wilkerson
Opinion of the Court
Within 30 days after the judgment was rendered on October 29, 1919, to wit, November 21, 1919, a motion for new trial was filed by the plaintiff on the following grounds;
“(1) The verdict is contrary to the evidence (2) The verdict is contrary to the weight of the evidence. (3) The verdict is contrary to the great preponderance of the evidence. (4) The court erred in its rulings respecting the admissions of evidence upon the trial of this cause in the following particulars, viz.”
—and was then signed by the attorneys.
The three original grounds of the motion for new trial will be considered and reviewed by this court in this case. The plaintiff sues to recover for the conversion by the defendants of lumber from a building on lot 22, *192 block 452, in the city of Bessemer. The plaintiff claims title to the lot and building and lumber through two mortgages on the property, given by Jobi^ W. Cash and Hattie E. Cash to the King Lumber Company, and transferred by the King Lumber Company to plaintiff. One mortgage was to secure $500, and the other secured $285.50. The' $500 mortgage is dated June 19, 1905. The mortgages were foreclosed by plaintiff May 1, 1916, and the property purchased by her (plaintiff). S. P. King did business under the name of King Lumber Company, and sold lumber. He is a brother of plaintiff, and her agent. The evidence for plaintiff was that both of said mortgages were given for borrowed, money; that neither were paid; that no interest and none of the principal had ever been collected; that no demand for principal or interest was made on the mortgagees until just before the foreclosure — 10 years after they were given; that plaintiff received the mortgages by transfer from her brother before maturity, by paying him cash in full for each. The evidence for the plaintiff tended to show that defendants moved some of the lumber from a house on the lot off of the place and used it on other property, and its value. John W. Cash, one of the mortgagors, is dead. His widow married C. W. Wilkerson. She and her husband, C. W. Wilkerson, and W. C. Howard are defendants.
The evidence for the defendants tended to show that John W. Cash, the mortgagor, was a carpenter — built houses; that the $500 mortgage was given for lumber to erect a house for Frank and Maggie Robinson; that John W. Cash agreed to build the house and furnish material for $416; the material was purchased from the King Lumber Company, and it amounted to $285.50; that the said $285.50 mortgage was given for the exact amount of the lumber debt, and in lieu of the $500 open mortgage debt for the lumber; that John W. Cash built the house and the Robin-sons paid him $100 cash, and gave their notes, at John W. Cash’s request, for the balance ($316), not to him, but to the King Lumber Company, to pay the $285.50 mortgage debt of John W. Cash; and that the' Robinsons paid the notes to the King Lumber Company and in this way the mortgage debts were paid in full.
The evidence for the defendant tended to show that said two mortgages were paid, and that afterwards John W. Cash and his wife borrowed money from the King Lumber Company ($935) to pay the Parsons mortgage on this property, and gave inortgage on the property to secure the $935, and that this mortgage was paid in full by them.
The evidence for the defendants also tended to impeach the.bona fides of the transfer of said mortgages to plaintiff.
The evidence for plaintiff tended to show that neither the $500 nor the $285.50 had been paid; that the lumber for the Robinson house was sold direct to the Robinsons, and had no connection with the consideration of either the $500 or the $285.50 mortgage.
Affirmed.
Reference
- Full Case Name
- SORSBY v. WILKERSON Et Al.
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- 23 cases
- Status
- Published