Edwards v. Crittenden

• Decision Date: 09 April 1925
• Docket Number: 6 Div. 366
• Citation: 213 Ala. 156,104 So. 277
• Parties: EDWARDS v. CRITTENDEN.
• Court: Alabama Supreme Court

104 So. 277

213 Ala. 156

EDWARDS v. CRITTENDEN.

6 Div. 366

Supreme Court of Alabama

April 9, 1925

Rehearing Denied May 14, 1925

Appeal from Circuit Court, Jefferson County; C.E. Wilder, Special Judge.

Action in detinue bye J.J. Crittenden against Jesse Edwards. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Charles W. Greer, of Birmingham, for appellant.

T.J Judge, Edgar Allen, and K.E. Cooper, all of Birmingham, for appellee.

SAYRE J.

Statutory detinue for one Haynes automobile. Defense was made under the general issue. Judgment for plaintiff. Defendant appeals.

Plaintiff claimed title as remote assignee of a contract by which the Ewart-Brewer Motor Company sold the car in question to E.H Posey, retaining title until the purchase money should be paid in full. The evidence showed a balance due of something over $800. This, with the possession acknowledged by the plea, made a prima facie case for plaintiff. Code 1923, § 7404. Defendant had bought the car from L.B. Cooper, who October 27, 1923, had taken an assignment of the Ewart-Brewer contract, and to whom Posey had, on what consideration does not appear--but that is immaterial--surrendered the automobile. Two days later, October 29th, in pursuance of a contract entered into on October 24th, defendant accepted the automobile from Cooper and, by an agreement indorsed on the Ewart-Brewer contract, acknowledged the unpaid balance due on the purchase price to be $800, with interest, and agreed "that said [Ewart-Brewer] contract shall henceforth be a subsisting and binding one between the undersigned and L.B. Cooper as to all its terms just as though we were the original parties thereto." The effect of this transaction was to establish a contract between Cooper as vendor and Edwards as vendee on the terms of the Ewart-Brewer-Posey contract.

Defendant's main reliance on this appeal is that the trial court refused to admit in evidence an executory agreement in writing, of date October 24th, between himself and Cooper, by the terms of which defendant was within 5 days to convey a certain house and lot to Cooper in consideration of the sale to him by Cooper of the automobile in suit, defendant "to assume $800 first mortgage on Haynes automobile." The report of the case sets out the agreement. This agreement was executed on the part of defendant by his indorsement of October 29th on the Ewart-Brewer contract, to which we have referred. It is also to be inferred from the evidence that at some time he executed a deed to the house and lot as agreed.

Defendant's purpose, as appears from his brief, in offering the agreement of October 24th in evidence was to show thereby that title to the automobile had vested in him, and therefore there was no consideration moving to him for his subsequent indorsement on the Ewart-Brewer contract, and, as we gather from the brief to show that the indorsement contract of October 29th, even if so intended, cannot be accepted as an execution of the agreement of October 24th, for the reason that the last-mentioned agreement provides for the assumption of a "first mortgage" on the automobile, whereas the indorsement contract evidenced the assumption of the burden of a so-called lease sale contract--conditional sale it is, with superadded terms. Barton v. W.O. Broyles Stove Co. (Ala.Sup.) 103 So. 854. By both such contracts, viz. mortgage and conditional sale, the legal title is either retained or revested as a security for the purchase price. By the agreement, accepted by defendant as binding upon him, it was intended to bind him, upon his failure to pay any installment, to forfeit his purchase and all payments made, and, besides, to "mature the entire indebtedness and render all installments due and payable," which, it must be conceded, is somewhat more than the usual first mortgage. None the less, the agreement of October 24th was an executory agreement, as its terms clearly disclose, and the indorsement agreement adopting the contract of conditional sale--and dealing with the same subject-matter, necessarily--was, there appears not the slightest reason to doubt, the result of an intent to execute it. It follows that the agreement of October 24th was merged in the indorsement agreement of October 29th adopting the Ewart-Brewer contract, mutatis mutandis of course, as the contract between Cooper and defendant--this, notwithstanding the difference between the two--and the adopted contract became, so far at least as it concerned the rights and interests of the parties in the automobile in issue in this case, the exclusive memorial of the...