Armstrong v. Farrell

• Decision Date: 19 June 1958
• Docket Number: 4 Div. 860
• Parties: G. E. ARMSTRONG v. Nathan E. FARRELL et al.
• Court: Alabama Supreme Court

Page 309

104 So.2d 309

267 Ala. 606

G. E. ARMSTRONG v. Nathan E. FARRELL et al.

4 Div. 860.

Supreme Court of Alabama.

June 19, 1958.

J. Hubert Farmer, Dothan, for appellant.

Huey D. McInish and Alto V. Lee, III, Dothan, for appellees.

COLEMAN, Justice.

This is an appeal by a defendant from an adverse verdict and judgment in an action of trover for conversion of certain dry cleaning equipment. Defendant's motion for a new trial was overruled. The only error assigned is the action of the trial court overruling the motion for a new trial.

The grounds of the motion argued by appellant are that:

'A. The verdict of the jury was a compromise verdict.

'B. Under no phase of the testimony was there a basis for the finding of the jury that the defendant was liable to the plaintiffs in the sum of $1500.00, the amount of the jury verdict.

'C. Certain calculations made by the jury in their deliberation in the jury room after they had received the Court's charge as to the law in the case, and which calculations were returned together with their verdict and delivered to the Clerk of this Court, show that said verdict was a compromise verdict.'

The suit was originally against G. E. Armstrong and Hansel A. Mauldin. The trial court, without objection by any party, gave the affirmative charge in favor of the defendant Mauldin.

The complaint consisted of one count in code form, to which the defendants pleaded not guilty. The verdict was against defendant Armstrong for $1,500 and judgment was entered accordingly.

The facts appear to be that in November, 1952, defendant, Armstrong, sold the dry cleaning equipment to the plaintiffs (Nathan E. Farrell and his wife, Gladys E. Farrell) for $4,500. Paintiffs paid $1,000 in cash and gave the defendant, Armstrong, a mortgage on the equipment for $3,500 to secure payment of the balance of the purchase price. The mortgage debt was due and payable in installments of $100 per month, beginning December 18, 1952.

It appears that plaintiffs were not financially successful in operating the dry cleaning plant and did not pay the first installment when it was due or any other installment of the mortgage debt.

The plaintiff, Nathan E. Farrell, testified that in January, 1953, he and his wife sold and conveyed to the defendant, Armstrong, a certain house and lot located in Geneva, Alabama, for an agreed price of $3,000; that the house and lot at the time of said sale were subject to certain prior encumbrances, payment of which was assumed by the defendant, Armstrong, leaving a balance or equity in the amount of $1,200 which was to be applied as a credit on the debt owed by the plaintiffs for the unpaid balance of the purchase money for the dry cleaning equipment.

Armstrong's testimony was to the effect that the credit due plaintiffs for their equity in the house and lot was less than the $1,200 claimed by Farrell because Armstrong was required to pay and did pay $1,290 instead of $1,000 to satisfy one of the mortgages on the house and lot, and also because Armstrong was required to pay certain debts incurred by plaintiffs in operating the dry cleaning plant which amounted to $170. The testimony as to these contentions of Armstrong and the amount of the credit to which plaintiffs were entitled for their equity in the house and lot was in dispute and presented an issue of fact for the jury.

Some time after conveyance of said house and lot to Armstrong as aforesaid, as appellant states in brief:

'It further developed in the trial of the case that by and through some arrangement between mortgagee and mortgagors, the dry cleaning plant in question was placed in the possession of the mortgagee and appellant here, appellant insisting that the property had been abandoned and appellees insisting otherwise. * * *

'The case was submitted to the jury under the court's instructions, to the effect in brief, that defendant Armstrong was liable under the pleadings unless he was justified in his foreclosure of the mortgage on the theory that the mortgagors had made default in the payment of the debt or had abandoned the property, one or both. The Court further instructed the jury that should they find the defendant liable, the amount of their verdict should be the value of the property in question at the time defendant Armstrong sold the same to Mauldin.

'When the jury returned its verdict in favor of the plaintiffs in the sum of $1500.00, they also delivered to the clerk of the court a certain paper with certain calculations, and which was introduced as evidence at the hearing of the motion for a new trial. The same has been identified as plaintiffs' 'Exhibit C' (TR 61). The Court's close attention is called to this particular exhibit, * * *. The Court's particular attention is likewise called to the testimony of Nathan Farrell, one of the appellees, to the effect that the property in question was worth $3500.00 (TR 11-12); likewise to the testimony of this appellant that this property was worth $3865.00 (TR 30). It should also be noted that appellant Armstrong bought in the property in question at his foreclosure sale for the sum of $2325.00.'

Appellant's argument in support of Grounds A and B of the motion for new trial is concisely stated in brief as follows:

'Under the issues as made up by the Court and presented to the jury, and in the language of the trial court in its charge to the jury 'if the plaintiff is entitled to recover, the plaintiff would be entitled to recover the reasonable market value of the property.' (TR 39.)

'The jury concluded that appellant's foreclosure sale was unlawful and that as a possible consequence his sale of the property in question to one Mauldin was wrongful and in destruction of the rights of the plaintiffs; and that therefore, the plaintiffs were entitled to recover.

'There being no pleas of set-off or recoupment, the only other issue to be ascertained and determined by the jury was the reasonable value of the property in question. * * *

* * *

* * *

'In view of the rule of law as laid down in the cases above cited, it appears clear that as stated in Holcombe & Bowden v. Reynolds, 200 Ala. 190, 75 So. 938, '* * * Neither the court nor jury have the right to arbitrate or compromise differences between the parties, and hence, when it appears that the verdict cannot be justified on any reasonable hypothesis of fact founded in the evidence, the finding must be held to have been the result of compromise or mistake and, upon proper proceedings, must be set aside or reversed.'

'Considering the testimony of the plaintiff to the effect that the property was worth $350.00, defendant Armstrong's testimony that it was worth $3865.00 and the evidence to the effect that it actually sold for at least $3500.00, and probably $3865.00, it is hard to say how any other reasonable hypothesis of fact might be had. The only other testimony is that the property sold at foreclosure sale, with one bidder, for the sum of $2325.00. It seems wholly obvious that had the jury's verdict been for $2325.00, there still could be no reasonable basis in fact for such verdict in the face of the very reasonable and great preponderance of testimony that it was worth at least $3500.00. * * * (Emphasis supplied.)

'It thus seems crystal clear that, without more, the finding of the jury must be held to have been the result of compromise or mistake.'

We are of opinion that the verdict of the jury can be justified on a reasonable hypothesis presented by the evidence and does approximate one of the conclusions possible under the evidence.

The rule for ascertaining the amount of damages to be awarded a mortgagor in an action against the mortgagee for conversion of the mortgaged property has been stated by this court as follows:

'The measure of damages in such case, in the absence of evidence showing a wilful conversion, fraud or gross negligence, is the value of the mortgagor's special property in the chattel represented by the difference between value of the property, where such value exceeds the amount of the mortgage debt, and...