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Nov. 1893.) CHENOWETH HARDWARE Co. v. GRAY.

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while in the officer's hands or while in court; but that, if the arrest 18 not made in good faith, or if the property is not seized under probable ground for the belief mentioned, or is in no way connected with the crime, and is not used as evidence, it is not subject to attachment or garnishment: Ex parte Hurn, 92 Ala. 102; 25 Am. St. Rep. 23. and note; Commercial etc. Bank v. McLeod, 65 Iowa, 665; 64 Am Rep. 36.

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FRANCIS CABNOWETH HARDWARE COMPANY V. GRAY,

(104 ALABAMA, 236.) SALES-NO ABSOLUTE PRICE-INVENTORY TO FIX PRICE.-If a stock of goods is sold, in payment of a debt, and delivered, the sale is complete, especially where the parties so intend, and the title passes, though no absolute price is fixed, and the value of the goods is to be determined by an inventory to be afterward laked, the difference between the amount of the debt and the value of the goods to be paid to the party entitled thereto. Hence, the purchaser's title is not affected by the levy of an attachment, sued out by a creditor of the seller, upou the goods before the completion of the inventory.

Statutory trial of the right of property. The hardware company caused a writ of attachment to be levied on a stock of goods as the property of the defendants in attachment, the Payne Brothers. William Gray interposed a claim to them under the statute, and the trial below was between the plaintiff in attachment and the claimant, on the issue joined by the plaintiff's allegation that the goods levied on were the property of the defendants in attachment. The evidence showed that the Payne Brothers did own the goods, but they were indebted to the plaintiff and other creditors. Gray was indorser, for the defendants, on four notes payable to a bank. The bank was pressing Gray for payment, and he insisted upon the Payne Brothers paying him. The Payne Brothers had no money, but they and Gray entered into an agreement whereby they sold him their stock of goods in consideration that he would pay the bank notes, including one not due. But while the goods were sold in settlement of the debt, there was a disagreement as to the value of the stock. The parties finally agreed to leave this question to ap praisers, who were to fix the price of the goods. If their value should exceed the sum to be paid by Gray to the bank, the overplus was to remain the property of the defendants; but, if they should fall short of that amount, the defendants were to make good the shortage, by the transfer of notes and accounts due to them by customers. Gray paid the bank by his check, which was accepted and charged to his account. Gray took charge of

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the goods, and the key of the store was delivered to the claimant's appraiser. After the sale, but before the completion of the inventory, the sheriff made his levy of the attachment. The plaintiff, after the court had given its charge to the jury, requested the court to charge that, "If the jury believe the evidence, they will find the issue in favor of the plaintiff.” The court refused to give this charge, and the plaintiff excepted. This was the only error assigned.

H. J. Gillam, for the appellant.
Henry A. Garrett, for the appellee.

240 HARALSON, J. The rule is too well settled to require further discussion that the title to personal property may and will pass to a vendee, without fixing an absolute price, if the cir. cumstances attending the transaction satisfactorily show that such was the intention of the contracting parties. And if the articles sold were to be afterward weighed or measured, so as to adjust and fix accurately the price to be paid, and it is clear from the terms of the contract that the parties intended that the sale should be complete before the weighing or measuring should take place, the title to the property will be held to have passed before this was done. An actual delivery of the property sold, such as the evidence, without conflict, establishes was done in this case, manifests an intention of the parties to effect a completed sale, and the inventory provided to be afterward taken must be held to have had reference to the adjustment of the price, without the performance of which it was not completed, and not as a part of the contract of sale. So the title passed at once; and if, for any reason, the inventory had not been afterward taken, and the parties could not agree on the price, such happenings, as we have held, would have made no difference in the character of the transaction: Foley v. Felrath, 98 Ala. 176; 39 Am. St. Rep. 39; Greene v. Lewis, 85 Ala. 221; 7 Am. St. Rep. 42; Wilkinson v. Williamson, 76 Ala. 168; Shealy v. Edwards, 73 Ala. 175: 49 Am. Rep. 43; Allen v. Maury, 66 Ala. 10.

There was no error in the ruling of the court below.
Affirmed.

SALES-WHEN COMPLETE.—THE PASSING OF TITLE upon a sale of personal property depends upon the intention of the parties to be derived from the contract and its circumstances. Actual dellyery, weighing, and setting aside, are only circumstances from which buch intention may be inferred: Commonwealth v. Hess, 148 Pa, St. 98; 33 Am. St. Rep. 810. A sale of personal property is complete and passes title to the buyer although the thing sold has not been meas. nred or the quantity ascertained in any way, where it is apparent that it is the intention of the seller to transfer the title, and of the buyer to accept it: Note to Foley v. Felrath, 39 Am. St. Rep. 44; Shaddon y. Knott, 2 Swan, 358; 58 Am. Dec. 63. If a mass of goods is sold, and must be measured, etc., simply with a view to ascertain Its price for the purpose of a settlement, the title passes: Cleveland v. Williams, 29 Tex. 204; 94 Am. Dec. 274.

JOHNSON v. LOUISVILLE & NASHVILLE RAILROAD Co.

(104 ALABAMA, 241.) NEGLIGENCE-INSUFFICIENT PLEA OF CONTRIBUTORY NEGLIGENCE.-In an action against a railroad company for the negligent killing of the plaintiff's intestate, while he was an employé of the defendant, a plea “that the injuries to plaintiff's intestate now complained of, it any he received, would not have occurred but for his faults or negligence, and that his faults and negligence contributed proximately and directly to produce said injuries," is too general, and is demurrable, on the ground that it does not state the facts relied upon as constituting the alleged negligence of the plaintiff's Intestate.

RAILROADS-EJECTING PERSONS-REFUSAL TO PAY FARE.-If a person boards a railroad train, but uses obscene and insulting language, refuses to pay his fare, and is guilty of reprehensible conduct generally, tbe conductor is justified in ejecting him from the car.

NEGLIGENCE, CONTRIBUTORY.- DRUNKENNESS does not exempt a person from the responsibility of contributory negligence. The law exacts from one voluntarily intoxicated the same care and precaution to avoid injury as it would from a sober person of ordinary prudence under like circumstances; so, if intoxication reuders a person reckless or indifferent to consequences, or inadvertent, or thoughtless, and he fails to exercise due care, his failure or omission will not be excused, because superinduced by his intoxication.

RAILROADS -NEGLIGENCE-EJECTION OF DRUNKEN PERSON-LIABILITY.-If tbe conductor of a railroad train knows that a person on the train is so intoxicated that he does not possess the powers of locomotion, that he is unconscious of danger, and that he cannot appreciate his position and surroundings, or his duty to avoid passing trains, and he puts him off at a place dangerous to one in his condition, and at which he is killed, the conductor is guilty of negligence, and the railroad company is liable for damages resulta ing from such ejection, although the deceased may have been a trespasser on the train, and might have been legally ejected in a proper manner and at a proper place.

WITNESSES-EXPERT TESTIMONY.-The effect of alcoholic drunkenness upon a person is not a subject for expert testimony.

WITNESSES-WHEN INCOMPETENT.-A witness is incom. petent to testify as to whether a person in: one end of a railroad car was in "a senseless condition" or "stupidly drunk," where he saw such person in conversation with others, but could not hear anything that was said, had no conversation with him, and oocupied a seat at the other end, and on the opposite side of the car.

Action for damages. The plaintiff demurred to the defendant's special plea. The demurrer was overruled. The nature of the plea, and of the demurrer, appears in the first syllabus above. The evidence tended to show that the plaintiff's intestate was a passenger on the defendant's train, having purchased a ticket from Cullman, Alabama, to Wilhite, Alabama, stations along the line of the road. The plaintiff's intestate, when he boarded the train, had been drinking, and he took several drinks on the train. He was very boisterous and noisy, and used profane, vulgar, and obscene language on the train in the presence of other passengers. He did not get off at Wilhite, but informed the conductor that he was going on to another station. The conductor demanded his fare, which he refused to pay, and he became very profane and boisterous. This continued, and, as he persisted in refusing to pay his fare, the conductor stopped the train and put him off in a cut along the line of the road. He was afterward found dead upon the track some time during the same night. Upon the trial, Dr. Purdon, as an expert, was asked the following question: “Will you please tell us the effect of alcoholic drunkenness upon a person or individual?” The defendant objected to this question, on the ground that the subject was not one for expert testimony. The court sustained the objection. The court gave the general affirmative charge in behalf of the defendant. There was a judgment for the defendant, and the plaintiff appealed.

L. C. Dickey and W. T. L. Cofer, for the appellant.
J. M. Falkner, for the appellee.

244 COLEMAN, J. The plaintiff, as administratrix, sued to recover damages for the killing of intestate, alleged to have been caused by the wrongful negligence of the defendant. The defendant pleaded the general issue, and as a second plea the contributory negligence of the deceased. The plea of contributory negligence was defective 245 in the respect pointed out in the demurrer. It was too general, and the court erred in overruling a demurter to this plea: Tennessee etc. R. R. Co. v. Herndon, 100 Ala. 451. We cannot presume that if the facts relied upon to sustain this plea had been stated, that plaintiff would not have met them with rebutting testimony. It was the plaintiff's right to know the facts, and to have an opportunity to meet them.

So far as the evidence bears upon the question of the right of the conductor to eject the deceascd from the car, it is substantially the same as when the case was here on a former appeal: Louisville etc. R. R. Co. v. Johnson, 92 Ala. 204; 25 Am. St. Rep. 35. The conduct of the deceased was reprehensible, his language obscene and insulting, and his refusal to pay his fare justified the conductor in ejecting him from the car. We feel safe in stating that, under the evidence, the death of the deceased was not caused by the car from which he was ejected, nor by any act of violence on the part of the conductor in putting him off. The evidence shows that a freight car running on schedule was following the passenger car about thirty minutes late, both going north, and that a passenger train was due coming south, several hours late, and a passenger going north was due forty minutes after the south passenger had passed the place where the body of deceased was found. It was not known certainly that any person had been killed, until discovered by this last passenger train going north, about 2:25 a. m. The evidence shows that the deceased was put off at night, that it was very dark, and that he was put off in a cut, and that it might have been two hundred yards, either north or south, to the end of the cut. The deceased was familiar with the cut and condition of the adjacent lands, having lived near by for several years. There was room in the cut, by standing near the walls, for trains to pass, and there were places along the cut where a person could get out from the track. There is no evi. derece tending to show that the officers or employés of the defendant, operating the freight train which followed the train from which deceased was ejected, or the subsequent passenger trains, had any notice or knowledge of the peril of deceased. Negligence cannot be imputed to them. If there were no other faots in this case we would declare as matter of law that plaintiff could not recover.

246 It is contended for plaintiff, that because of deceased's drunken condition, the conductor who ejected him was not justified in putting him off and leaving him at the time and place where he was put off and left. Under the facts in the present record, that is the only issue in the case. What is the rule of law in such cases? Drunkenness does not exempt a person from the responsibility of contributory negligence. If intoxication renders a person reckless or indifferent to consequences or inadvertent or thoughtless, and he fails to exercise due care, his failure or omission will not be excused, because superinduced by his intoxication. The law exacts from one voluntarily intoxicated the same care and precaution to avoid injury as it would from a sober person of ordinary prudence under like circumstances: Columbus etc. Ry. Co. v. Wood, 86 Ala. 164; 4 Am. & Eng. Ency. of Law, 78; Louisville etc. R. R. Co. v. Johnson, 92 Ala. 204; 25 Am. St. Rep. 35.

There is another principle of law to be observed which requires of all persons in the exercise of a right, or the performance of

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