Commercial Inv. Trust, Inc. v. East

• Decision Date: 10 November 1927
• Docket Number: 5 Div. 981
• Parties: COMMERCIAL INV. TRUST, Inc., v. EAST.
• Court: Alabama Supreme Court

117 So. 160

217 Ala. 626

COMMERCIAL INV. TRUST, Inc., v. EAST.

5 Div. 981

Supreme Court of Alabama

November 10, 1927

Rehearing Denied Jan. 28, 1928

Further Rehearing Denied May 31, 1928

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Action in detinue by the Commercial Investment Trust, Incorporated against J.D. East. From a judgment for defendant, plaintiff appeals. Affirmed.

Albert Hooton, of Dadeville, and McClellan & Stone, of Birmingham for appellant.

Geo. C Douville and Jas. W. Strother, both of Dadeville, for appellee.

SAYRE, J.

Statutory detinue for an automobile. The machine had been sold by the West Point Overland Company to the defendant East. We think it may be conceded that the vendor retained title as security for an unpaid balance of the purchase price--this though we find in the bill of exceptions no statement to that specific effect. The bill does, however, contain repeated references to the contract between vendor and purchaser as a "conditional sale contract," and this collocation of words is of such common and frequent use in connection with transactions of the kind as to justify the stated conclusion. A paper writing purporting to witness the contract of sale was put in evidence. There was evidence going to show that the paper writing in question had been materially altered by some one subsequent to its execution and delivery by defendant, and whatever of difficulty there may have been in determining the rights of the parties in the trial court arose out of the alleged alteration. The alteration, as we gather from the bill of exceptions, apart from the original paper which has been transmitted to this court, had the apparent effect of transmuting defendant's promise to pay a balance of $1,200--to speak in round numbers--in twelve equal monthly installments, into a promise to pay the entire sum in one payment at the end of twelve months. This was a material alteration, and, if made by a party claiming under it, vitiated the paper so that no right could be asserted under or proved by it. 2 C.J. p. 1173; Id., p. 1179, § 9; Carroll v. Warren, 142 Ala. 398, 37 So. 687. But, as against the purchaser, such contract did not need to be in writing (Code, § 6898), and the paper writing, if unchanged, would have served only the purpose of standing as evidence of the contract, and its alteration had not the effect of destroying the contract between the parties or divesting vendor of his retained title. 2 C.J. p. 1178, § 7. The reasoning employed by the court in Boulden v. Estey Organ Co., 92 Ala. 182, 9 So. 283, supports this conclusion. The moral and legal effect of the situation thus disclosed is simply that, as against the original vendor or the transferee of his title and interest, appellee could not at one and the same time retain the machine and the price he promised to pay for it.

The evidence, including defendant's sworn admission to the same effect, showed without dispute that the transaction between the West Point Company and this appellee, vendor and purchaser of the automobile in question, was a conditional sale so that the title remained in the vendor or its assignee until the purchase price was paid in full, and that defendant had not paid the price in full, and therefore, as for anything stated up to this point, the legal title was still in the West Point Company, and, if the foregoing statement disclosed the case in its entirety, it would follow that plaintiff, the Commercial Company, could not recover, because in actions of this character the plaintiff must show in himself a general or special property with the right to immediate possession. 5 Mich.Dig. sub. cap. "Detinue," § 4.

Appellant contends that it sufficiently and without contradiction appears that the title to the machine in question was transferred and assigned to it by the vendor, the West Point Company, and, to sustain that contention, would have the court examine the original contract of sale and its assignment to appellant which has been certified to this court for its inspection.

It has been the unvarying rule of this court since the decision in Pruitt v. McWhorter, 74 Ala. 315 (1883), not to consider documents put in evidence in the trial court and transmitted to this court unless copied into the transcript. Wright v. Dunklin, 83 Ala. 317, 3 So. 597; Black v. Pate, 130 Ala. 514, 30 So. 434; Southern Railway v. Leard, 146 Ala. 349, 39 So. 449; Darrow v. Darrow, 201 Ala. 477, 78 So. 383; Owens v. State, 215 Ala. 42, 109 So. 109. We find no reason in this case for departing from that line of decisions. It is urged that this court, on May 12, 1927, the day on which this cause was submitted, noted on the trial docket leave to appellant to file original papers within ten days. This order, we presume, was made on the motion or suggestion of counsel. On May 6th the trial judge had ordered the papers to be transmitted, but they had not yet been filed in this court,. Counsel for appellee does not appear to have opposed the motion, and upon this is based the contention of a waiver of the rule of procedure to which we have referred. The record of the cause (including the notation on the trial docket) is far from showing the intentional relinquishment of a known right. For one thing, the appellee had no right. The matter presented affected the court and its procedure, and, as for the court, it does not appear that it was informed of the situation or that the motion had other purpose than to permit the future filing of the papers which in due course should have been on the file at the time. In Pruitt v. McWhorter, supra, the court held that the agreement of counsel that original papers be omitted from the transcript did not warrant their consideration on appeal, so that in this case, as in Wright v. Dunklin, supra, we must pronounce judgment on the transcript proper without reference to the papers in question.

We have felt justified in holding that the vendor retained title to the automobile, and, as for anything appearing in the bill of exceptions which purports to contain all the evidence, that title is still outstanding in the vendor. The transfer of the paper of which the witnesses speak is of no consequence if the paper itself had been materially altered by a party in interest after its execution and delivery by the appellee vendee of the car. The great weight of the testimony introduced--Yates, the vendor, doing business as the West Point Overland Company, did not testify--went to show the alteration, and some of it tended to prove that the paper had been altered since it passed into the hands of the appellant plaintiff. In any event it had no effect upon the title. There was no other evidence of a transfer of the West Point Company's title to plaintiff appellant. We are constrained to hold, therefore, that, on the case made by the bill of exceptions, the legal title to the machine in controversy remained in the West Point Company and upon that title, of course, appellant could not recover in this action.

It may be conceded for the argument that the rulings of the trial court against appellant's demurrers to special pleas 2 and 3 were laid in error. The errors, if any, thus committed were innocuous. These pleas 2 and 3, whatever the state of the evidence as to them was or may have been, became immaterial in the presence of the fact, shown in the undisputed evidence as it appears in the bill of exceptions, that the title to the property in suit was in the West Point Company. The facts alleged in plea 6 might have been availed of under the general issue, and therefore the ruling as to it was innocuous. Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115. We have therefore no alternative but to affirm the judgment.

Affirmed.

GARDNER, BOULDIN, and BROWN, JJ., concur.

On Rehearing.

SAYRE J.

The automobile was at first the property of the West Point Overland Company, which had it for sale. It was sold conditionally to defendant, but no title has ever passed because the condition of full payment of the purchase price has never been performed, as all parties agree. The title then remains in the Overland Company, unless it has been shown to have passed to plaintiff. We may concede that the contract of conditional sale--that is, the paper writing purporting to evidence the sale--was assigned to plaintiff in some form, whether unconditionally or with conditions does not appear; but if that paper writing had been materially altered by plaintiff or the ...