E.E. Forbes Piano Co. v. H.C. & W.B. Reynolds
| Decision Date | 30 June 1911 |
| Citation | 56 So. 270,1 Ala.App. 501 |
| Parties | E. E. FORBES PIANO CO. v. H. C. & W. B. REYNOLDS. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.
Detinue by H. C. & W. B. Reynolds against David Selman, in which the E. E. Forbes Piano Company was substituted as claimant. Judgment for plaintiffs, and claimant appeals. Affirmed.
Logan Van de Graaf & Logan, for appellant.
Lavender & Thompson, for appellees.
DE GRAFFENRIED, J.
This was a suit in detinue, brought by appellees against David Selman for the recovery of a piano, in which suit the appellant regularly appeared as claimant. Upon issues regularly made between the appellees and appellant, the case was tried by a jury, and there was a verdict in favor of appellees and a judgment of the court in accordance with the verdict.
It appears from the evidence that David Selman, who was an illiterate man and the owner of but little property, bought the piano on February 1, 1904, from appellant; that he executed his note for the purchase money, which was to be paid at the rate of $10 per month; and that the appellant reserved title to the piano in the note; it being expressly stipulated in the note that the piano was to be the property of appellant until all of the purchase money was paid. It further appears from the evidence that said Selman, on August 5, 1905, executed and delivered to appellees a mortgage on the piano and other personal property to secure a note for $600. The mortgage recites that it was executed for advances to make a crop and to secure all debts that the mortgagor might in future owe the mortgagees, and that it was additional security to other papers held by the mortgagees given by the mortgagor. This mortgage was filed for record on the 5th day of August, 1905, the day of its execution, and the above note to appellant for the purchase money of the piano made on February 1, 1904, was not filed for record until February 7, 1906. It further appears from the evidence that appellees were merchants, and that David Selman was a customer of appellees in 1904; that one H. E. Reynolds was the general manager of the appellees in 1905, and had from that time up to the trial continued as such; that in the year 1905 said David Selman moved to the farm of said H. E Reynolds, near Centerville, and continued to live on said farm up to December, 1908, and that for the years 1906, 1907 and 1908 the said Selman executed mortgages to the appellees to cover advances for those years; each of said mortgages conveying, among other things, the piano in question, and each providing that it was taken, not in satisfaction of the preceding mortgage or mortgages, but as additional security to the preceding ones. The evidence further tended to show that neither the purchase-money note of appellant nor the mortgage made to appellees in August 1905, above described, had been paid, and that, when the mortgage was executed in August, 1905, David Selman owed appellees five or six hundred dollars. There was evidence also tending to show that said mortgage, dated August 5, 1905, was given to secure an indebtedness then existing, but not due, advances made at the time of the execution of the mortgage, and future advances, and that such future advances were in fact made.
On the question as to whether the appellees had notice of the existence of the appellant's claim on the piano when the above mortgage was made, there is a flat and irreconcilable conflict in the testimony. David Selman and two or three of his sons swear positively that actual notice of the existence of appellant's claim was given to H. E. Reynolds appellees' general manager, at the time of, and before, the execution of the mortgage. H. E. Reynolds, on the other hand, swears positively that no such notice was given, and that neither he nor any of the appellees had notice of the existence of appellant's claim until long after the execution ...
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