Cable Piano Co. v. Estes

• Decision Date: 21 April 1921
• Docket Number: 7 Div. 187
• Citation: 89 So. 372,206 Ala. 95
• Parties: CABLE PIANO CO. v. ESTES.
• Court: Alabama Supreme Court

89 So. 372

206 Ala. 95

CABLE PIANO CO. v. ESTES.

7 Div. 187

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Action by the Cable Piano Company against W.D. Estes. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Acts 1911, p. 449. Affirmed.

Hugh White, of Gadsden, for appellant.

Hugh Reed, of Center, for appellee.

THOMAS J.

The action was of detinue, in two counts, based upon an alleged conditional sale contract in writing. The contract purporting to retain title to property sued for is exhibited as a part of count two. Demurrer eliminated all of defendant's pleas except the general issue and special plea F.

In this state it is the law that a reservation of title is more than a lien in the holder of the title. The reservation prevents the title from vesting in the party contracting for the purchase until its purchase price is fully paid. And on default detinue is a proper remedy for its repossession by the vendor. Alexander v. Mobile Auto Co., 200 Ala 586, 588, 76 So. 944; Bishop v. Minderhout, 128 Ala 162, 29 So. 11, 52 L.R.A. 395, 86 Am.St.Rep. 134.

By statute it is provided that upon the trial of an action in detinue the jury must, if they find for plaintiff (1) assess the value of each article separately, if practicable, and (2) also assess damages for its detention; and if they find for the defendant (a) they must likewise assess the value; and (b) if it is in the possession of the plaintiff, assess the damages for its detention. The burden is on the plaintiff to show the value of the property sued for and the value of its detention by defendant, if recovery is to be had for such detention. The evidence shows that the property sued for "is reasonably worth the sum of $100"; that the same was taken by plaintiff as provided by statute and retaken by defendant by giving bond, etc., as required by statute. Code 1907, §§ 3780, 3781; Gwin v. Emerald Co Inc., 201 Ala. 384, 78 So. 758; Montgomery Enterprises v. Empire Theater, 204 Ala. 566, 86 So. 880; Nixon v. Smith, 193 Ala. 443, 69 So. 117. The judgment entry sufficiently assesses the value of the property, its alternate value, in compliance with the statute.

The contract under which plaintiff seeks to rest its retention of title and right of recovery of possession of the property sued for stipulated that the contract made with the salesman was "subject to the acceptance of the Cable Piano Company, and contains all the agreements pertaining thereto, and no agent or salesman is authorized *** to make any promise or contract differing in any wise from that which is written or printed hereon." The subsequent transaction or correspondence between plaintiff and defendant was competent as tending to show the agency and extent thereof of O.E. Sosebee pertaining to the sale of the piano for the plaintiff and subsequent collection for the amount due on the contract, if such contract was binding under the facts of the particular case. In plaintiff's letter of date January 13, 1915, a short while after the maturity of the first note, was the request that payment of the amount due be made to "our agent Mr. Sosebee, on receipt of this letter." Lawrenceburg Roller Mills Co. v. Jones, 204 Ala. 59, 85 So. 719.

Appellee further insists that, aside from the several rulings of the court, in which it was insisted there was error, in no event was appellant entitled to recover, and, whatever action of the trial court was erroneous, it would be without injury. Lawrenceburg Roller Mills Co. v. Jones, supra. Amended count 2 avers that plaintiff was a...