
    Baker v. Malone & Sons.
    
      Action <of Trover.
    
    1. Trover; when not maintainable against warehouseman for failure to deliver goods.—The mere failure of a warehouseman to deliver on demand goods which have been entrusted to him is not a conversion which will support an action of trover, where there was no denial by the warehouseman of the title of the true owner, nor dominion exercised by him over the goods inconsistent with the bailment, and no evidence of the conversion or appropriation of the goods to the warehouseman’s use, or the use^ of any third person by the warehouseman.
    2. Same; sufficiency of complaint.—A complaint in an action of trover, which does not aver a conversion by the defendant, fails to state a cause of action and is subject to demurrer.
    3. 'Warehouseman’s receipt; what necessary to maintain suit. In order for the holder of a warehouseman’s receipt for cotton to maintain an action thereon, it is necessary that he should have acquired the legal title by the receipt having been endorsed to him by the persón to whom the receipt was issued, or that such person should have assented in writing that the cotton be delivered to the plaintiff.
    4. Same; action for money had and received.•—A complaint in an action of trover which does not contain sufficient averments, for the maintenance of said action, and which contains no averments that there had been a sale by the defendant of the property involved and receipt by him of the proceeds, can not be construed into a complaint in an action for money had any received.
    Appeal from the Circuit Court of Henry.
    Tried before the Hon J. C. Rici-iardson.
    This action was brought by the appellant against the appellees. 'The complaint, as amended, Was as follows: “Tbe plaintiff claims of tlie defendant the sum of seventeen hundred and fifty dollars damages for that defendants were, during the latter part of the year 1897 and first part of the year 1898, engaged in the business of storage, comxiressing cotton and keeping the same for-shipment or forwarding, and issued their receipts for cotton so coming into their possession and the delivery thereof to the compress; that during -said season of 1897-98, the defendants received at the -compress of Mr. IV. P. Oamx>bell sixty-six hales.of cotton, giving, tluur receixit for the same; that said reeei])ts for said, sixty-six hales- of -cotton was delivered by the said YV. P Camx)b(?ll to the cashier of the Bank of Dothan as. security for advances made by said Bank of Dothan to. said Campbell, and also to secure a debt due the plaiutiff in this action by said Camxihell; and that in February 1898, the plaintiff: purchased said sixty-six bales of said Camx>bell paying the Bank of Dothan the debt of Camx>bell to them, applying the balance in settlement and cancellation of the said Camx)belFs debt to plaintiff, and thereupon received control and possession of the receijits for said sixty-six hales of cotton, and on demand of said cotton of the defendant they failed and refused to deliver the same to him, to his damages as. aforesaid.”
    The defendant demurred to the complaint nxion tbe following grounds: 1. Said, eomxdaint fgils to allege-that defendants made a sale of the cotton entrusted to them. 2. Said complaint fails to allege that defendants encumbered or transferred said cotton with the assent in writing of the jíerson to whom they gave the receipt, to-wit, \V. P. Campbell or the legal holder of' such receixhs. 3. Said eomxdaint fails to allege that the reeeixrts given by the defendants to said Campbell were-endorsed by said Campbell to xdaintiff. 4. Said complaint fails to allege facts showing that plaintiff was-the legal holder of the receipts mentioned therein at the time he made demand on defendants for said cotton. These demurrers were sustained, to which ruling the plaintiff duly excepted. The xdaintiff declining to plead further, judgment was rendered for the defendant. The plaintiff appeals, and' assigns as error the rulings of the court in sustaining. the demurrers to the complaint.
    
      II. A. Pearce, for appellant,
    cited Davis v. Hurt, 114 Ala. 146; Lehman ■/■. Pritclicil, 84 Ala. 512; Alabama Biale Bank r Baines, 82 Ala. 607.
    Esty & Farmer, con Ira,
    
    cited Anelfuss v. Ooirigan. 60 Araer. St Rep. 143; B'insheimer v. Whitley, 52 Amer. 'St. Rep. 192: 84 Amer Dee. 753.
   McCLELl.AN, C. J.

This suit is by Baker against M a lone & Sons. The .-omplaint in substance alleges that one Campbell stored sixty-six bales of cotton with defendants as Avarelioinemen, and took their receipts as warehousemen for the same, that plaintiff subsequently purchased this cotton from Campbell and thereupon received possession and control of said receipts, the said Campbell delivering them to him, that plaintiff then demanded said cotton of defendants but that they failed and refused to deliver the same to him, whereby plaintiff was damaged in the sum of seventeen hundred and fifty dollars, for vdiich he sues. Defendants demurred to the complaint, the demurrer was sustained, and, plaintiff declining to amend, judgment was entered for defendants, and plaintiff appeals.

The complaint presents no cause of action in trover: It does not aver conversion by the defendants.—Bolling v. Kirby, 90 Ala. 215, s. c. and note, 24 Am. St. Rep. 789-819; Davis & Son v. Hurt, 114 Ala. 146.

The legal title to the receipts executed by defendants was, upon the averments of the complaint, not in the plaintiff because they had not been indorsed to him. Code, § 4222. There is no averment that Campbell to whom the receipts were issued had assented in writing that the property should be delivered to the plaintiff. There being no such assent and the plaintiff not being ■the-“legal holder of the receipts,” the statute expressly forbade the defendants to deliver the cotton to him. Code, § 4221.

This cannot be contorted into an action for money had, and received, for’ there is no averment that there had been a sale by defendants and the receipt by them of the proceeds, even if such action -would lie on these averments with those already in the complaint, which we do.not decide.

We, therefore, 'concur with the circuit court in its ruling on demurrer; and its judgment for the defendants must he affirmed.

Affirmed.  