Emerson-Brantingham Implement Co. v. Arrington

• Decision Date: 22 January 1927
• Docket Number: 3 Div. 762
• Citation: 112 So. 428,216 Ala. 21
• Parties: EMERSON-BRANTINGHAM IMPLEMENT CO. v. ARRINGTON,
• Court: Alabama Supreme Court

112 So. 428

216 Ala. 21

EMERSON-BRANTINGHAM IMPLEMENT CO. v. ARRINGTON,

3 Div. 762

Supreme Court of Alabama

January 22, 1927

Rehearing Denied March 31, 1927

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action by the Emerson-Brantingham Implement Company against G.B Arrington, who formerly did business under the tradename and style of Montgomery Tractor & Implement Company. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

"Plea of estoppel" is grounded on injury from pleader's reliance on adversary's conduct or declarations.

The action is on two promissory notes made on October 16, 1920 and payable respectively on November 15, 1920, and January 1 1921. There is also a count for merchandise, goods, and chattels sold by plaintiff to defendant on May 20, 1920. As amended, the sole defendant is G.B. Arrington, "who formerly did business under the trade-name and style of Montgomery Tractor & Implement Company."

The defendant pleaded the general issue, and non est factum in Code form, and also some special pleas, of which 8, 9, 10, and 11 went to the jury.

Plea 8 is as follows:

"(8) That the consideration for the notes and account sued on was merchandise consisting of certain implements and machinery, sold by plaintiff to the Montgomery Tractor & Implement Company under and by virtue of a written contract entered into on, to wit, May 20, 1920, a substantial copy of which contract is hereto attached, marked 'Exhibit A,' and made a part of this plea, with leave of reference thereto as often as may be necessary. That on, to wit, February 7, 1921, the plaintiff, acting through its agent, one H.M. Murphy, did assert its right under the terms of said contract to repossess, and did repossess, itself of a substantial portion, to wit, $2,000 in value of the machinery and implements delivered by the plaintiff to said Montgomery Tractor & Implement Company under the terms of said contract; wherefore, this defendant says that the plaintiff elected to abandon and did abandon its right to sue for the price or any part of the price of the implements and machinery so delivered by plaintiff to said Montgomery Tractor & Implement Company under the terms of said contract."

Plea 9 is as follows:

"(9) That the consideration for the notes and account sued on was for certain machinery and farming implements sold by the plaintiff to Montgomery Tractor & Implement Company under and by virtue of a certain contract entered into by and between plaintiff and said Montgomery Tractor & Implement Company made on, to wit, May 20, 1920, a substantial copy of which contract is attached to and made a part of plea No. 8, and is now made a part of this plea the same as if set out herein, with leave of reference thereto as often as may be necessary. That at the time said contract was entered into, the plaintiff was a foreign corporation, and has not complied with the laws of the state of Alabama requiring foreign corporations to file in the office of the secretary of state certified copy of its articles of incorporation and a declaration naming an agent and known place of business in this state; neither at said time had the plaintiff obtained a permit to do business in this state as a foreign corporation. Wherefore, defendant says that the said notes and account sued on are void and of no effect."

Plea 11 is in substance the same as plea 9.

Plea 10 combines the defenses set up in pleas 8 and 9, with more elaboration of details.

All of these pleas exhibit the contract of sale, in the form of an order signed at Montgomery, Ala., by plaintiff and "Montgomery Tractor & Implement Company, by Emery S. Egge, Mg'r," directing shipment to said tractor and implement company from Nashville, Tenn., of a schedule of some 20-odd items of farm machinery; each item being separately priced, and the aggregate price being shown as $2,717.94.

Pertinent provisions of the contract are:

"1. *** It is expressly agreed that upon receipt of goods under this contract, and upon monthly balance, or at settlement time at the option of said company we will execute notes to it for the amount to be paid for the goods so received according to the terms of this contract; and the giving of such notes shall not vest the title to such goods in us, nor be deemed or regarded as a payment for such goods, but only as evidence of indebtedness, and it is agreed that title to ownership of, and right of possession of all goods shipped under this contract, and all proceeds of sales of same, and proceeds of insurance in case of loss, to the amount of the invoice price of goods destroyed, shall be and remain in said company, until said goods are paid for in cash, and until all notes given by us to said company pursuant to this contract, shall be paid in cash. All notes to be drawn with exchange and all remittances to be made in Chicago Exchange. Said notes shall be secured by good farmers' notes not less than $1.25 on the dollar when requested by said company. No cash discounts allowed if we owe said company any past-due notes or account. Freight and allowances shall be deducted before cash discounts are computed. Any open account shall become due at the option of said company. All past-due accounts shall draw at the highest contract rate."

"10. We agree to sell to good and responsible parties only, and that all sales made of such goods shall be for not less than the invoice prices and to accept as full compensation, the amount realized in excess of said invoice prices; and we agree to insure all goods delivered under this contract for the full invoice price for the benefit of said company, to keep the same well housed and in good condition until sold or reshipped; to keep the same free from all charges and expenses, including taxes; and should any goods remain unsold at the end of the selling season, we agree to pay for same in cash, or notes secured by good collateral notes to an amount equal to 25 per cent. in excess of notes so given; or if the Emerson-Brantingham Implement Company elects to order such goods, or any part thereof, shipped elsewhere we will ship and deliver them free of all charges including freight. If any goods redelivered are in unsalable or damaged condition, I or we agree to pay the Emerson-Brantingham Implement Company such sum as shall be necessary to put such goods in salable condition."

"12. We agree to make an accounting to the Emerson-Brantingham Implement Company for all goods sold, and turn over to it the proceeds of sale of same whenever requested so to do."

Demurrers to pleas 8, 9, 10, and 11, were overruled, and plaintiff replied to plea 8:

"That the plaintiff did not repossess itself of any portion of the machinery and implements delivered by it to the defendant for the

purchase price of which this suit is brought, but plaintiff avers that, on the contrary, the machinery and implements for the purchase price of which this suit is brought were never repossessed or taken back by it from the defendant."

And to the plea of non est factum:

"That G.B. Arrington was doing business under the tradename of Montgomery Tractor & Implement Company, which fact was known to the plaintiff; that while so doing business as said Montgomery Tractor & Implement Company, the defendant purchased from the plaintiff certain machinery, on, to wit, May 20, 1920.

"Plaintiff further avers that at the time said machinery was sold to the defendant it was agreed by and between the plaintiff and the defendant that the defendant subsequently, at the option of the plaintiff, would execute notes for the purchase price of said machinery; that subsequently on, to wit, October 6, 1920, the Montgomery Tractor & Implement Company, at the request of the plaintiff, executed the notes here sued on. The plaintiff further avers that if between the time said machinery was purchased and said notes were executed there was any change in ownership of said Montgomery Tractor & Implement Company, plaintiff had no notice of such change in ownership and had no knowledge thereof, but accepted said notes under the belief that said Montgomery Tractor & Implement Company was still owned by the defendant and was the tradename under which he was conducting his business."

Demurrers were sustained to these replications, and thereupon, on account of these several rulings on the pleadings, plaintiff took a voluntary nonsuit, with leave to review the rulings on appeal.

Weil, Stakely & Vardaman, of Montgomery, for appellant.

Steiner, Crum & Weil, of Montgomery, for appellee.

SOMERVILLE J.

It is the settled law in this state that the vendor in a conditional sale of chattels, who successfully asserts his right to repossess the property, thereby abandons his right to recover the purchase price. Sandlin v. Maury Nat. Bank, 210 Ala. 349, 98 So. 190; Sanders v. Newton, 140 Ala. 335, 37 So. 340, 1 Ann.Cas. 267. This principle is very generally recognized by the American courts. 24 R.C.L. 491, § 785.

The proposition presented by defendant's special plea numbered 8 is that when a conditional vendor has exercised his right to repossession by taking from the vendee a part of the property sold to him, he elects to pursue that remedy in toto, and loses the right to recover, not merely the whole of the purchase price, but even such part thereof as covered that part of the property which has not been reclaimed.

The theory of the plea is that, although the sale in this case was for numerous items of machinery, each item separately priced, the sale was in fact a single transaction, or else became by statement a single account, for the whole of which an aggregate price was due; and that this claim or account could not be split into two or more parts, one part to be satisfied...