Cameron v. McNelley

• Decision Date: 18 December 1956
• Docket Number: 8 Div. 750
• Citation: 91 So.2d 514,38 Ala.App. 634
• Parties: Roy CAMERON v. R. G. McNELLEY, d/b/a McNelley Motors.
• Court: Alabama Court of Appeals

Page 514

91 So.2d 514

38 Ala.App. 634

Roy CAMERON v. R. G. McNELLEY, d/b/a McNelley Motors.

8 Div. 750.

Court of Appeals of Alabama.

Dec. 18, 1956.

Russell W. Lynne, Decatur, for appellant.

Eyster & Eyster, Decatur, for appellee.

PRICE, Judge.

The appellee brought suit against the appellant for the sum of $204.57. The complaint contained two common counts (1) account (2) work and labor done.

In addition to the general issue, defendant interposed a special plea of recoupment. Said special plea asserted as a defense that the plaintiff was indebted to defendant in the sum of $642 for the conversion by him of 1 auxiliary transmission; 1 set saddle fuel tanks; 1 fifth wheel.

The court gave, at plaintiff's request, the general affirmative charge with hypothesis as to the plea of recoupment. He also gave for the plaintiff the general affirmative charge without hypothesis under the plea of the general issue.

Plaintiff was engaged in the general automobile business at Decatur. During the latter part of 1952, he sold and delivered to defendant a Dodge truck and trailer. As part payment for the purchase price, the defendant gave in trade a 1951 used truck leaving a balance due on the Dodge truck of $3,518.88, including finance charges, insurance, etc., which the defendant promised to pay in 24 successive monthly installments, each in the amount of $146.62, beginning on January 5, 1953.

The parties made and executed a conditional sale contract for the truck which provided that: 'Title to the car is retained by the holder hereof (meaning seller, or universal C. I. T. Credit Corporation (hereinafter called 'Universal C. I. T.') if this contract is assigned to it), until such balance is fully paid in money.' The contract was duly assigned to the C. I. T. Corporation.

The contract provides further that 'If customer defaults on any obligation under this contract, or if the holder shall consider the indebtedness or the car insecure, the full balance shall without notice become due forthwith.'

The C. I. T. Corporation received from defendant from January 6, 1953, through September 30, 1953, nine payments of $146.62 each, totalling $1,319.58.

During the latter part of October the cab of the truck was damaged by fire. Defendant testified he called McNelley Motors and the truck was pulled to its place of business; that defendant and the insurance adjustor never reached an agreement as to the amount of insurance; that he never asked McNelley for the truck back, and after the fire he made no more payments on the truck.

Thereafter on December 19, 1953, the insurance company paid to the C. I. T. Corporation the sum of $983.43 for the fire loss. McNelley testified that he took up payments from the finance company, that there was an insurance rebate of $290.29, that he paid to the C. I. T. Corporation $500 cash and the C. I. T. Corporation charged to his reserve fund $197.82, making a total of $692.82 from McNelley Motors; that he sold the truck with the auxiliary transmission for $385, but the fifth wheel and saddle tanks were otherwise disposed of.

The testimony for defendant was to the effect that the fifth wheel, saddle tanks and auxiliary transmission were on the old truck traded by him to McNelley Motors and belonged to him and were to be placed on the Dodge truck free of charge and were no part of the sale from plaintiff to him.

The plaintiff introduced in evidence a bill of sale or 'car invoice' evidencing the sale of the Dodge truck to defendant. Under the heading 'optional equipment and accessories' is listed, among others, 'Fifth Wheel, Saddle Tanks, Aux. Transmission.'

A further provision in the conditional sale contract is as follows: 'That all equipment, tires, accessories and parts shall become part of the car by accession.'

The burden was on the defendant to establish the material averments of the special plea of recoupment. First Nat. Bank of Gadsden v. Howard, 21 Ala.App. 363, 108 So. 402.

To be entitled to the right of recovery for conversion the defendant must have had general or special title to the property, and possession or immediate right of possession; and plaintiff must have wrongfully executed some act of dominion over the property inconsistent with and destructive of defendant's title. Hamilton v. Hamilton, 255 Ala. 284, 51 So.2d 13; Hickman v. Hannas, 263 Ala. 399, 82 So.2d 795; Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247.

By the terms of the retention of title contract the accessories attached to the truck became a part of it and after default and repossession of the truck defendant had neither title nor immediate right of possession. We cannot accord merit to defendant's insistence, that there was no default in any payment under the contract at the time of the appropriation by plaintiff of the articles set out in the plea, since the payment of the insurance money amounted to more than six additional monthly payments on the contract. Defendant testified that after the truck burned he made no more payments on the truck, and under the provision of the contract above set out, upon default by defendant of any payment the entire balance became due.

We conclude that the court properly gave the general affirmative charge for the plaintiff as to the special plea.

Under the plea of the general issue the burden was on the plaintiff to make out a case under the common counts. Olive v. Fenner & Beane, 229 Ala. 464, 157 So. 673; McCombs v. Clark, 35 Ala.App. 391, 47 So.2d 220. To do this, the plaintiff had the burden of 'proving to the reasonable satisfaction of the jury either that the amount of the account was agreed upon or that the work was done in a good and workmanlike manner, that the charges therefor were reasonable and that the...