Boulden v. Estey Organ Co.

• Decision Date: 02 May 1891
• Citation: 92 Ala. 182,9 So. 283
• Parties: BOULDEN v. ESTEY ORGAN CO.
• Court: Alabama Supreme Court

9 So. 283

92 Ala. 182

BOULDEN v. ESTEY ORGAN CO.

Supreme Court of Alabama

May 2, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Tipton Bradford, for appellant.

Lea & Greene, for appellee.

STONE C.J.

This is a statutory action of detinue, brought by the appellee, a foreign corporation, to recover a piano, which was conditionally sold to the vendor of the appellant, defendant in the court below. The general rule is that, to maintain detinue, or the corresponding statutory action for the recovery of chattels in specie, the plaintiff must be clothed with the legal title, or must have the right to the immediate possession of the goods sued for. Jones v Anderson, 76 Ala. 427; Gluck v. Cox, 75 Ala 310; Graham v. Myers, 74 Ala. 432; Huddleston v. Huey, 73 Ala. 215. The question of prime importance in the present suit is, where was the legal title,-in whom was it vested at the commencement of the action? By the terms of the contract, the sale was, beyond all cavil, conditional; and the conditions thereof, precedent to the vesting of title in Mrs. Richards, not being performed, the title remained in the plaintiff. Harmon v. Goetter, 87 Ala. 325, 6 South. Rep. 93; Fairbanks v. Eureka Co., 67 Ala. 109; Sumner v. Woods, Id. 139; 1 Benj. Sales, § 425; Fields v. Williams, (Ala.) 8 South. Rep. 808.

The point most earnestly contended for by appellant is that the plaintiff cannot look to this contract in support of the present suit, nor can its right to maintain the action be referred to any rights arising out of the contract. The ground of this contention is that the transaction whereby the piano was sold, the notes executed, and the agreement for the reservation of title made, was the doing business in Alabama without conforming to constitutional requirements. Article 14, § 4. Those requirements were made effective by the act of the general assembly approved February 28, 1887, (Acts 1886-87, p. 102.) Admitting, for the sake of argument, the contention of the defendant, what is the result? The transaction is one expressly violative of the constitution and laws of the state, and therefore illegal. The contract, founded upon this illegal transaction, is necessarily void, and cannot be enforced, nor any rights arising therefrom asserted. Dudley v. Collier, 87 Ala. 431, 6 South. Rep. 304. We have, then, this case, according to appellant's own showing: The foreign corporation entered into an executory agreement to sell the piano, but the agreement did not ripen into an executed contract of sale. The title remained with the Estey Organ Company. If the promise to pay for the piano had been violative of no constitutional or statutory prohibition, the purchaser could not have acquired the right and title to the piano without paying the agreed purchase price. But, owing to the provisions of the constitution and of the statute, the purchaser cannot be compelled to pay the agreed price. What is the effect? Certainly not to vest title in the purchaser, without performing the condition on which his title was made to depend. To so hold would be to make a contract for the parties which they never agreed to make, and to convert the transaction into an absolute sale, when the contracting parties agreed to make, and did make, it only a conditional agreement to sell; and this, notwithstanding the non-performance of the condition, stands out as an undisputed fact. Conceding that all the executory terms of the agreement of sale were opposed alike to the constitution and to the statute, and therefore not enforceable, the title to the piano remained in the Estey Organ Company, unaffected by the illegal, unexecuted attempt to sell it. An executory agreement to make a sale which the law forbids to be made, cannot, at one and the same time, be invalid to bind the purchaser to the performance of the agreed condition precedent to the vesting of title in him, and yet valid to divest title out of the would-be seller. In such conditions the law leaves the parties as it finds them, and leaves the title where they left it. The title being left in the Estey Organ Company by the terms of the agreement, there is nothing shown in this record which can divest that title. It is still in the Estey Organ Company. This rule would doubtless be different, if there had been an absolute sale on credit, and a delivery of the thing sold. Such sale would pass the title to the purchaser, and the seller would be without power to coerce payment, or to repossess himself of the piano. In Christain v. Mortgage Co., 89 Ala. 198, 7 South. Rep. 427, it was decided that the prosecution or defense of an action in this state by a foreign corporation was not the transacting or engaging in business in Alabama, as prohibited by the constitution and statute. Pretermitting all further discussion as to whether the plaintiff corporation is one that falls under the ban of the constitutional provision, (Const. art. 14, § 4,) as made effective by legislative enactment, (Acts 1886-87, p. 102,) or...