
    (132 So. 893)
    SPURLIN v. ADAMS et al.
    4 Div. 543.
    Supreme Court of Alabama.
    March 5, 1931.
    E. O. Baldwin, of Andalusia, for appellant.
    
      O. B. Fuller, of Opp, for appellees.
   GARDNER, J.

The action of the court in refusing the affirmative charge requested by defendant is the only question here presented.

Plaintiffs offered proof .tending to show that defendant owned and operated a public gin to which they carried the bale of cotton, the loss of which constitutes the subject-matter of this litigation, for the purpose of having it ginned, and with the express agreement on defendant’s part that he would deliver the cotton to a designated warehouse without extra charge; that all of plaintiffs’ cotton was so delivered, with the exception of the one bale, which was not delivered to the warehouse, and never accounted for to plaintiffs, .though . demand made therefor; that defendant admitted getting the bale, and agreed to pay for it if not found; and ■that there was at or near the close of the season a bale on defendant’s platform untagged. This untagged bale defendant was of the opinion was his own, and so treated it.

It is clear from the foregoing that plaintiffs made out a prima facie case for recovery. 6 Corpus Juris, 1158.

Defendant’s evidence tended to show that plaintiffs themselves carried off this bale of cotton, but this plaintiffs denied, and it was also a disputed question of fact as to whether or not defendant had agreed to deliver the cotton at the warehouse. But, in any event, and all the evidence considered, it was clearly a case for the jury, and there was no error in the refusal of the affirmative charge at defendant’s request.

Let the judgment be affirmed.

Affirmed.

ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.  