Denver-Albuquerque Motor Transport, Inc. v. Green

• Decision Date: 05 May 1976
• Docket Number: DENVER-ALBUQUERQUE
• Parties: MOTOR TRANSPORT, INC., a corporation v. Cecil GREEN and Thomas Hudson. Civ. 743.
• Court: Alabama Court of Civil Appeals

Page 719

331 So.2d 719

57 Ala.App. 709

DENVER-ALBUQUERQUE MOTOR TRANSPORT, INC., a corporation v. Cecil GREEN and Thomas Hudson.

Civ. 743.

Court of Civil Appeals of Alabama.

May 5, 1976.

Russell L. Irby, Eufaula, for appellant.

William H. Robertson, Clayton, for appellees.

BRADLEY, Judge.

This is an appeal from a judgment of the Barbour County, Circuit Court, Clayton Division, awarding Cecil Green and Thomas Hudson, appellees here, $4,357.96 plus costs. The amount is equal to mileage payments due appellees for four trucks hauls, less fuel permit fees and incidental expenses already paid by appellant, Denver-Albuquerque Motor Transport, Inc., (hereinafter D & A).

D & A filed a complaint which commenced this suit on May 14, 1975. This complaint, sounding in detinue, sought possession from Green and Hudson of two identified Fruehauf refrigerated trailers, and claimed damages for wrongful detention thereof in the sum of two hundred dollars per day from May 7, 1975.

After a hearing held May 15 the county sheriff was ordered to seize the trailers and, upon D & A's posting of bond, to deliver the trailers to D & A. D & A posted such bond and was given possession of the trailers.

On June 23, 1975 Green and Hudson filed an answer and counterclaim. The answer admitted that D & A had title to the equipment in question, but alleged that Green and Hudson had a lien against the equipment for money owned them on a contract with D & A. The counterclaim sought judgment in the amount of $5,000, costs and attorney's fees.

In its amended complaint and reply, D & A denied the lien and demanded judgment in the sum of $2,036.60 for the unlawful detention of the trailers.

Trial was held before the judge sitting without a jury. On September 5, 1975 judgment was rendered in favor of Green and Hudson. D & A's motion for new trial was denied.

The facts of the case appear to be as follows:

On January 27, 1975 Green entered into a contract with D & A. In March, Green signed another identical Contractor Operating Agreement with D & A, to which Hudson was also a party. Under the terms of these form contracts, Green and Hudson, independent truckers, agreed to supply and operate tractors on behalf of D & A, who would supply trailers and arrange cross-country hauls for its customers. The contract gave D & A broad authorization to schedule hauls, and placed a great many requirements on Green and Hudson regarding operation of the vehicles. Clause 2(a) of the contract provided:

'Contractor (Green and Hudson) shall be paid .38 cents-per-running-mile for each mile that the Equipment is operated for and on behalf of Carrier (D & A). Such mileage shall be computed on the basis of the dispatch instructions communicated by Carrier to Contractor, from the origin to the destination of each movement specified on the dispatch, using the mileages published in the current edition of the Household Goods Carriers' Mileage Guide.'

Green and Hudson testified that they made two hauls apiece for which mileage payments were never made by D & A.

In late April or early May, Green and Hudson completed their last hauls for D & A, unloading at separate points in Georgia. Thereafter they drove their equipment to Green's residence in Barbour County, Alabama, where they remained until the court order of May 15, 1975.

At the trial, Ralph E. Morach, witness for D & A, testified that, to his belief, the two truckers never contacted D & A's dispatcher after making their last Georgia deliveries. On cross-examination Morach conceded that he had no firsthand knowledge of the matter.

Green and Hudson testified that they did contact the dispatcher, and that the dispatcher specifically told them to go to Green's home to await further instructions because business was slack.

Green and Hudson further testified that on May 3 or 4 the dispatcher instructed them over the telephone to proceed to Lakeland, Florida. However, they were told they would not be paid thirty-eight cents per mile for the Lakeland run, but instead would only be reimbursed for fuel, about fifteen cents per mile. Green, who was speaking to the dispatcher on the phone, replied that they would not make the run for fuel costs only. The dispatcher answered that they would be in breach if they did not drive to Lakeland; Green told the dispatcher that D & A had breached first by ordering the Lakeland trip for fuel only.

After this phone call, Green and Hudson filed a lien on the trailers.

Subsequently, according to Green, the dispatcher was contacted and told by Green that the trailers would be delivered to any point requested if D & A would pay Green and Hudson all money owed them. Green's request for payment received no answer.

On approximately the 9th of May, Morach was told by officials at D & A to recover the trailers. Over a period of several days he repeatedly tried to reach Green and Hudson from Denver by telephone. None of these attempts succeeded.

Morach then flew to Barbour County and went with the deputy sheriff to Green's residence. Green was not there, so no contact was made.

Shortly thereafter the detinue suit was filed.

On appeal, D & A presents us with two issues. We shall address the second issue first, for it is dispositive of most matters involved here.

This issue is whether or not the trial court erred in finding that Green and Hudson were justified in 'rescinding' the contract....