Commercial Credit Co. v. Parks
| Decision Date | 07 April 1927 |
| Docket Number | 6 Div. 879 |
| Citation | 215 Ala. 648,112 So. 237 |
| Parties | COMMERCIAL CREDIT CO. v. PARKS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.
Action in detinue by the Commercial Credit Company against George Parks. From the judgment, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326.
Reversed and remanded.
London Yancey & Brower and Whit Windham, all of Birmingham, for appellant.
Curtis Pennington & Pou, of Jasper, for appellee.
Suit in detinue by appellant against appellee for one Chevrolet automobile. There was judgment for the plaintiff for the recovery of the car. Upon suggestion of defendant (the plaintiff holding a conditional sale contract [[section 7400, Code 1923]), the jury ascertained the value of the car to be $900, and the balance due at $80, and plaintiff, being dissatisfied therewith, prosecutes this appeal.
The questions here considered as of prima importance are presented by various rulings on rather voluminous pleadings and exceptions to portions of the oral charge of the court.
The transaction here involved originated in the purchase of this car by the defendant from the City Garage & Sales Company. For the remainder of the purchase price defendant executed to said City Garage Company (to so designate it) his negotiable promissory note and "conditional sale agreement," being one instrument and each referring to the other. This instrument was duly transferred and assigned for value and before maturity to the plaintiff in this action.
Defendant insisted that the instrument was tainted with usury, with the knowledge and connivance of the plaintiff, and that therefore the plaintiff was not in the position of a bona fide purchaser of a negotiable instrument. This cause was tried prior to the decision of this court in Commercial Credit Co. v. Tarwater, 110 So. 39. The transaction giving rise to the execution of this instrument was not for a loan of money or the forbearance of a debt, but represented the balance due on the purchase of the car.
The instant case bears close analogy to the above-cited authority, and, indeed, a comparison of the two is persuasive that in the essential features the Tarwater Case is similar to this and to such an extent as to be controlling here. Further discussion of the question would serve no useful purpose.
We are of the opinion, upon the authority of the Tarwater Case, it must be here held there was no usury in the transaction for the execution of this instrument, and that the plaintiff is entitled to the benefits of a bona fide purchaser for value and before maturity. As this conclusion is reached from a consideration of the undisputed evidence in the case, it results that the trial court committed error in submitting the question of usury for the jury's determination. But it is insisted the Tarwater Case is not here controlling for the reason this is a detinue suit resting upon the conditional sale contract, and not a suit upon the negotiable note. We think this...
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Jemison v. Howell
... ... character and quality of right that may be asserted in an ... action on the note. Commercial Credit Co. v. Parks, ... 215 Ala. 648, 112 So. 237; Fortson v. Bishop, 204 ... Ala. 524, 86 So ... ...
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Ballard v. First National Bank of Birmingham, 17104.
...upon the notes evidencing the indebtedness secured thereby, does not affect the principle which we have stated. Commercial Credit Co. v. Parks, 215 Ala. 648, 112 So. 237."2 Appellee Bank pled in this action and claims that the question of whether the written instrument called for the paymen......
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Commercial Credit Co. v. Seale
...the foregoing rules of law. In fact, the question posed for our decision seems to have been conclusively settled by the holding in the Parks case, supra, where it was observed: "The fact that a negotiable retains title to property therein described as security for the debt does not destroy ......
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Ballard v. First Nat. Bank of Birmingham
...upon the notes evidencing the indebtedness secured thereby, does not affect the principle which we have stated. Commercial Credit Co. v. Parks, 215 Ala. 648, 112 So. 237. III. It is contended that the court was in error in refusing to dismiss for improper venue. The question of venue was ra......