B.F. Goodrich Co. v. Hughes

• Citation: 194 So. 842,239 Ala. 373
• Decision Date: 07 March 1940
• Docket Number: 6 Div. 556.
• Parties: B. F. GOODRICH CO. ET AL. v. HUGHES.
• Court: Supreme Court of Alabama

194 So. 842

239 Ala. 373

B. F. GOODRICH CO. ET AL. v. HUGHES.

6 Div. 556.

Supreme Court of Alabama

March 7, 1940

Rehearing Denied April 4, 1940.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for trespass and conversion by Ed B. Hughes against the B. F Goodrich Company and others. From a judgment for plaintiff defendants appeal.

Reversed and remanded.

Martin Turner & McWhorter and J. C. Blakey, all of Birmingham, for appellants.

Basil A. Wood, of Birmingham, for appellee.

FOSTER Justice.

In a suit by appellee against the B. F. Goodrich Company, a corporation, Goodrich Silvertown, Inc., a corporation, L. E. Tadrick, and Commercial Credit Company, a corporation, a judgment was rendered in favor of defendant Commercial Credit Company, and against the other defendants who are the appellants here. Those appellants caused notice to issue under section 6143, Code, to Commercial Credit Company, which appeared and filed a motion quashing the notice to it, and that it be not required to join in the appeal.

The Code section referred to has no application to a party defendant in whose favor the judgment was rendered. Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 471, 93 So. 512; Mancill v. Thomas, 216 Ala. 623, 114 So. 223.

The Commercial Credit Company is not made a party by such notice. It is given the right to join in the appeal and assign errors if it is so disposed. Otherwise the appeal progresses by and in the name only of those who took the appeal. Hawkins v. Barber, 231 Ala. 53, 163 So. 608.

Since Commercial Credit Company has not, in response to the notice, seen fit to join in the appeal, and has not otherwise become a party to it, the rights of those who have appealed will be determined without prejudice to that company, but to preserve that status, it is not necessary to make an order in response to the motion which it has made.

We will therefore proceed to consider the merits of the appellants on the basis of their assignments of error, and argument in briefs.

This is an action for trespass and conversion, resulting from the taking of an automobile and its contents, including certain items of personal property.

The defendants filed special pleas of justification, and the general issue. The justification claimed was that the seizure was under the power contained in a chattel mortgage covering the automobile, then in default, which the pleas alleged had occurred before the seizure, and that the seizure was effected peaceably without force or violence, or a breach of the peace. Rhodes-Carroll v. Webb, 230 Ala. 251, 160 So. 247.

The first question here presented is as to the sufficiency of replication No. 2, to which the court overruled demurrers insofar as the same was an answer to said pleas and each of them. In plea No. 3 defendants alleged that the consideration of the mortgage was the purchase price of two automobile tires and tubes. The other pleas do not contain such a recital.

Replication No. 2 refers to the purchase of the tires and tubes, which occurred in Georgia, was evidenced by a written contract of purchase whereby the title was retained by the Goodrich Company until full payment of the purchase price, and then pleaded a statute of Georgia (Code 1933, § 96-108), whereby in such a transaction, if "the property is lost, damaged, or destroyed without the vendee's fault, he is entitled to a rescission of the contract or to an abatement of the price, unless it is otherwise agreed in the contract of sale"; that the tires and tubes were damaged without his fault prior to the taking of said property under the mortgage, and that he was entitled to a deduction of $18 as an abatement of the purchase price, which cancelled the mortgage debt.

The claim that demurrer to this replication as an answer to pleas 4 to 8, respectively, should have been sustained because those pleas do not recite that the consideration of the mortgage was the purchase price of the tires and tubes, and that said replication does not so state, is without prejudice, we think, since such is the undisputed evidence. Rule 45, Supreme Court Practice.

If by reason of an abatement, the entire mortgage debt was discharged, appellant had no right to retake the property under the mortgage pursuant to any of its provisions.

But appellant contends that such purchaser, by virtue of the Georgia statute, must elect whether he will rescind or abate the purchase price. While the plea seeking an abatement is an election, the contention means that it must be made at some prior time. It is also contended that the averments of the plea are insufficient to invoke the statute, and are but the conclusion of the pleader.

No Georgia cases are pleaded which interpret this statute, and we have made an independent search for them as precedent in that connection, but we find none which are helpful in construing this replication.

It is inconceivable to us that this code section permits an abatement of the purchase price for every sort of damage that may arise consistent with an absence of fault by the purchaser, such as results from the kind of use for which it was purchased. The replication avers the damage in the language of the statute. In the absence of some principle to the contrary, we are inclined to the view that the replication need not be more specific than is the statute. On such a replication, plaintiff should be limited to prove such damage as the statute contemplates.

Replication No. 3 sets up the making of certain representations as to the quality and durability of the tires sold, the price of which was the consideration of the mortgage, and which were the subject matter of the conditional sale contract. The representations are not alleged to have been wilfully false, nor with the intent to deceive, nor recklessly without knowledge of their falsity, nor made by mistake and innocently, but acted upon. Sections 8049, 5677, 7353, 7354; Harton v. Belcher, 195 Ala. 186, 70 So. 141. It is uncertain whether this replication undertakes to set up fraud or the breach of a warranty. It alleges that it was represented that they would last approximately twelve months, and travel for a distance of approximately 15,000 miles; that they did not last twelve months, nor travel 15,000 miles, but began to show wear within two and one-half months, and after 4,000 miles of travel. He then made demand for an abatement of the purchase price.

The failure to last twelve months, and to travel 15,000 miles do not constitute fraud, though it was represented that they would do that. It could therefore only serve as a warranty. It will be so treated.

But it is argued that any damage so resulting does not automatically abate the amount of the mortgage debt. And the principle has application when the damage results in a transaction not growing out of the subject matter of the mortgage whose debt is sought to be abated. McCullars v. Harkness, 113 Ala. 250, 21 So. 472.

But when the damage does grow out of the same transaction, the claim is by way of recoupment, which is essentially that the mortgage debt is thereby diminished or destroyed, with no right, when pleaded at law, to a judgment over, except by virtue of the existing statute which so provides. Section 10179, Code. So that we take it that on account of the relation which recoupment has to the debt, it is thereby automatically abated or destroyed. Grisham v. Bodman, 111 Ala. 194, 20 So. 514; Lowery v. Mutual Loan Soc., 202 Ala. 51, 79 So. 389.

The foregoing discussion considers all the arguments made by appellants as to the sufficiency of replications numbered 2 and 3. The ruling on demurrer to them is without reversible error, as so considered.

Assignments 9, 52 and 53.

The following explanation of the contention made by appellants in this connection appears in their brief:

"These assignments are predicated upon the court's overruling these appellants' objection to a question asked appellee's witness Miss Bonnie Burke on direct examination as to what happened concerning a telephone call which such witness, the telephone operator at the Altamont Apartment building, testified she received at or about the time of the taking complained of, and in overruling these appellants' motion made at the conclusion of all the evidence presented by appellee to exclude the testimony of such witness concerning such telephone call. * * *

"Miss Bonnie Burke, telephone operator at the Altamont Apartment building, was permitted to testify over the objection of these appellants that on the afternoon the automobile was taken she received an outside telephone call saying appellee was ill and his sons were outside and for her to get them inside, as the father might need them. * * *

"Appellee did not attempt to adduce any evidence directly connecting these appellants with such telephone call. The witness Miss Burke did not say from whom the call came and appellant L. E. Tadrick, who was in charge of the employees of appellant The B. F. Goodrich Company who took possession of the automobile, testified that no such call came from any such employees."

And in this connection, Mr. Tadrick, one of the appellants, and the authorized representative of the Goodrich Company, testified as follows: "About July 26, 1939 when I was at the Altamont Apartment with one or two other employees of the B F. Goodrich Company, I drove up in a car and two boys were in the automobile and I introduced myself as being with the Goodrich Company and asked was that Mr. Hughes' car and they said yes. We told the boys we would like to talk to Mr. Hughes and also told the boys we were taking possession of the car on our legal instruments right then, and a colored boy from the apartment came out and told the boys...