Blowers v. First Nat. Bank of Huntsville, 8 Div. 20

• Decision Date: 04 March 1970
• Docket Number: 8 Div. 20
• Citation: 45 Ala.App. 485,232 So.2d 666
• Parties: , 7 UCC Rep.Serv. 668 Tom BLOWERS, d/b/a National Car Rentals v. FIRST NATIONAL BANK OF HUNTSVILLE.
• Court: Alabama Court of Civil Appeals

Page 666

232 So.2d 666

45 Ala.App. 485, 7 UCC Rep.Serv. 668

Tom BLOWERS, d/b/a National Car Rentals v. FIRST NATIONAL BANK OF HUNTSVILLE.

8 Div. 20.

Court of Civil Appeals of Alabama.

March 4, 1970.

Culver & Miller, Huntsville, for appellant.

Cloud, Berry, Ables, Blanton & Tatum, Huntsville, for appellee.

BRADLEY, Judge.

This is an appeal from a judgment rendered by the Circuit Court of Madison County, Alabama, sitting without a jury, in four cases of detinue which had been consolidated for the trial.

There were four complaints sounding in detinue seeking recovery of three autos and one truck from the First National Bank of Huntsville, Alabama, accompanied by a bond and affidavit.

To each of the complaints a plea in short was filed, and then later a replevin bond was filed.

Although there had been a consolidation of the cases for trial, the court rendered separate judgments in each case for the defendant.

The plaintiff then filed a motion for new trial, consolidating the four cases into the one motion with common grounds. The motion was overruled.

The plaintiff then appealed the judgments in allfour cases to the Supreme Court. The case was subsequently transferred to this court.

There were thirteen assignments of error, four of which were not argued in brief, and are thereby waived. Supreme Court Rule 9.

The main thrust of the remaining assignments of error is directed toward the applicability or non-applicability of Title 7A, Section 2--201 of the Uniform Commercial Code. The trial court obviously decided that Section 2--201, supra, was not applicable to the situation here presented. Now, we must decide if it was correct.

The facts in this case show that the appellant, National Car Rentals, a motor vehicle leasing operation, allowed Doyle Brady Auto Sales, a used car lot operation, to take physical possession of three automobiles and one truck, which later became the basis of this case. The manner in which possession was obtained was in dispute.

The facts further show that during the time Doyle Brady had possession of these four motor vehicles, he executed and delivered to the First National Bank of Huntsville, Alabama, chattel mortgages on each of them. At the time the chattel mortgages were delivered on the four vehicles in question, the First National Bank and Doyle Brady had in effect a floor plan financing arrangement covering all after-acquired property, and the procedure was that when Doyle Brady delivered chattel mortgages on motor vehicles to the First National Bank, it would in turn make the agreed-upon deposits to his account. The First National Bank had filed a copy of the above-mentioned financing agreement with the Secretary of State prior to the transactions in question.

In October of 1967 the First National Bank foreclosed on the chattel mortgages it held from Doyle Brady Auto Sales, and took possession of his inventory of motor vehicles, including the four motor vehicles in question. The evidence as to how Doyle Brady Auto Sales obtained possession on the four vehicles in question was in sharp conflict.

Mr. Tatum, manager of National Car Rentals, testified that the four motor vehicles were placed in Doyle Brady's possession for the purpose of repairs and cleanup. Doyle Brady testified that the four motor vehicles were sold to him with the understanding that he would have thirty days in which to pay for them. Tendencies of the evidence also reflect that the history of dealings between National Car Rentals and Doyle Brady Auto Sales went something like this:

Brady testified that he had purchased outright, some forty to fifty motor vehicles from the appellant in the past. He also testified that he had sold for the appellant, ten to fifteen motor vehicles.

Mr. Tatum on the other hand testified that Brady had sold some twenty-five to fifty motor vehicles for National Car Rentals in the capacity of a commission agent.

The testimony was to the effect that during these transactions there had never been any written agreement or memoranda signed by either of the parties, either when the sales were outright sales to Doyle Brady, or when Doyle Brady was selling the motor vehicles for National Car Rentals.

Brady testified that when there had been an outright purchase of motor vehicles from National Car Rentals in the past, he had paid for them either in cash or by check. Mr. Tatum testified that when the automobiles were on consignment to Brady, that National Car Rentals still had title and right to possession of them, and if Doyle Brady obtained a purchaser for them, he would pay National Car Rentals for the motor vehicles after they were sold.

Mr. Tatum also stated that in a few instances, title to the motor vehicles would be given directly to the ultimate purchaser by National Car Rentals. In some instances National Car Rentals would turn over the motor vehicle and the keys thereto to Mr. Brady. There were also times when the bill of sale would be made out to the ultimate purchaser, but given to Mr. Brady to be handed to the purchaser. Furthermore, the tag receipts to the motor vehicles were usually transferred directly to the purchaser, although in a few instances stances they were given to Mr. Brady.

There was no evidence of the filing of a written statement with the Secretary of State by either National Car Rentals or Doyle Brady Auto Sales which would have shown that National Car Rentals was consigning autos to Brady for sale.

The evidence reflected that a 1966 Ford was on Brady's used car lot for some six to eight weeks for clean-up and minor repairs, prior to the time that it was taken by the appellee; a 1962 Ford truck was on Brady's lot for approximately eight weeks for minor repairs; a 1965 Falcon station wagon was on Brady's lot for some four to eight weeks for clean-up and minor repairs, although it was shown that during this period of time the car was reclaimed by National Car Rentals and kept for approximately one to two weeks before it was returned to Doyle Brady Auto Sales; a 1966 Chevrolet Impala was on Brady's lot for a period of time somewhere in the neighborhood of three to eight weeks for extensive repairs. The evidence also reveals that this motor vehicle was not repaired.

Mr. Tatum and Mr. Brady testified that the normal clean-up time for vehicles given to Brady for that purpose would be two to three days, and minor repairs would take, at the most, two days. The evidence revealed that the value of each of the four motor vehicles in question was in excess of $500.00.

Appellant, in his fifth assignment of error, contends that the trial court erred in refusing to exclude 'all of Brady's testimony pertaining to any transactions regarding the four automobiles on the basis of the statutes of frauds provisions of Title 7A, Section 2--201 and Section 2--202.' (Title 7A, Sec. 2--201 and Sec. 2--202, Code of Alabama 1940, as Recompiled 1958, being Act No. 549, General Acts of Alabama 1965, and known as the Uniform Commercial Code.)

Title 7A, Section 2--201, provides:

'(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.

'(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.

'(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable.

'(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning to their manufacture of commitments for their procurement; or

'(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or

'(c) with respct to goods for which payment has been made and accepted or which have been received and accepted.'

Title 7A, Section 2--202, provides:

'Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented

'(a) by course of dealing or usage of trade (section 1--205) or by course of performance (section 2--208); and

'(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.'

Section 2--202, supra, is not applicable to this case for the reason that no evidence was introduced at the trial showing written memoranda between National Car Rentals and Doyle Brady Auto Sales concerning their arrangement for the disposition of the motor vehicles in question. Neither can it be said that Brady was trying to clarify a written memorandum by his testimony--for there was no such writing.

Therefore, we will...