TANKERSLEY vs. CHILDERS et al., 23 Ala. 781

PHELAN, J. The action was assumpsit by three of the Childers to recover of the defendant their portion of the proceeds of the cotton which was sold by him as constable under an execution against David Childers, who, together with one Smyth and the plaintiffs, was a tenant in common of the cotton which he sold. The right of the plaintiffs to waive the tort, the conversion, and sue in assumpsit, is not denied. But it is insisted by plaintiff in error, that in this form of action all the parties in interest must join in action, and that they cannot sue if any number less than all join as plaintiffs.

This question of the right of any one tenant in common to waive a tort, and. sue separately in assumpsit, was considered in the case of Smyth v. Tankersley, 20 Ala. 212, when we held that such right existed. The general doctrine on this subject of non-joinder of plaintiffs, or the right to sue separately where a tort is waived, and parties sue in assumpsit, has since received a careful examination anew in the case of Smith’s Ex’rs v. Wiley, 22 Ala. 396.

The court in that case arrive at the conclusion, as the result of sound reason and the best authorities, that when a conversion has been committed against several, all the parties in interest waiving the tort may join, if they like, in an action of assumpsit; but, that they are under no legal compulsion to do so, for that any number less than all, or any separate one, may bring assumpsit for his or their share or interest without joining the rest. See the opinion of C. J. Chilton in that case, and the authorities there cited.

The next objection urged by plaintiff in error is, that the proof does not show any certain amount which the plaintiffs below were entitled to recover, and for which the jury could render a verdict; and that, therefore, the second charge requested by defendant below should have been given. The principle for which plaintiff in error contends is conceded, that unless a plaintiff shows, in an action for money had and received, some certain amount to which he is entitled, he must fail.

But we do not see how it can be contended, that the case of the plaintiffs below, as presented by the record, labors under this defect.

The bill of exceptions shows that the following facts were proven : That the plaintiffs and David Childers cultivated a piece of land belonging to one Smyth, and were to give him one fourth of “ all the products of the land as rent, after deducting all expenses for bagging, rope and hauling the cotton to mar - ket„” The three bales of cotton levied on by defendant as a constable, by virtue of an execution against David Childers, were a portion of the crop or products of this land. This cotton, it was proven, weighed 2616 pounds, and sold for 9 cents per pound.

There wras no proof as to what was the txpense of rope, bagging and the hauling to market of these three bales, but evidence was offered conducing to show that James B. and David W. Childers, two of the plaintiffs, had agreed to furnish Smyth’s part of the rope and bagging and hauling to market, and to receive a credit for the same on a blacksmith account he held against them ; and it was shown that they had furnished the rope and bagging and bauliDg for Smyth under this contract.

This proof, if believed by the jury, (ar.d the court put the charge in that way,) did furnish certain data upon which the jury were enabled to render a verdict; for it went to show that Smyth was entitled to one fourth of the entire proceeds of this cotton, and the other parties the other three fourths.— The jury, therefore, had only to make a calculation of the value of the cotton, deduct one fourth for Smyth, one fourth of the balance as the portion of David Childers, which the defendant was entitled to retain, and this would leave a sum certain, namely: the other three fourths of rvhat remained after deducting Smyth’s part, as the share to which the plaintiffs were entitled.

In view of this proof, the objection of plaintiff in error is not well founded. The foregoing observations cover the only assignments of error which have been urged, and as wo find no error in the record, the judgment below is affirmed,