Gaston v. McDonald

• Decision Date: 20 June 1929
• Docket Number: 3 Div. 900.
• Citation: 220 Ala. 155,124 So. 208
• Parties: GASTON v. MCDONALD.
• Court: Alabama Supreme Court

124 So. 208

220 Ala. 155

GASTON v. MCDONALD.

3 Div. 900.

Supreme Court of Alabama

June 20, 1929

Rehearing Denied Oct. 31, 1929.

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Action in detinue by Thomas D. McDonald against Charles C. Gaston. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

The subject-matter of the suit is a Ford truck and trailer.

The testimony for plaintiff tended to show that Rufus Darby purchased the truck and trailer from defendant for $450 paying a part of the purchase price in cash, the balance to be paid in installments; that a contract was drawn up at the time by defendant and signed by Darby; that Darby did not know how it was made out, having lost his copy, except that it set forth a memorandum of the payments; that nothing in the course of the trade between Darby and defendant was said about retaining title to the truck; that Darby kept the truck about two weeks, when he agreed to trade it to McDonald (the plaintiff) and Richard Boling, these latter two agreeing to turn over to him a team of oxen valued at $250 and to pay him $200 over; that Darby, McDonald, and Boling thereupon went to see defendant to get his "satisfaction" to the trade; that defendant stated to them that it would be entirely satisfactory to him for the trade to be made, and that he would look to Darby for his money; that nothing was said about the title, nothing to the effect that title was retained or to be retained or that defendant would look to the truck for his security; that Darby offered to give a note covering the ox team, but defendant waived the offer, saying he would stand on the original trade; that the trade was thereupon made, it being agreed between Darby, on the one hand, and McDonald and Boling, on the other, that as soon as Darby had paid to defendant $250, the equivalent of the value of the ox team, McDonald and Boling would pay to Darby the $200 over; that defendant then had possession of the truck and on the following morning delivered it to McDonald and Boling, and the ox team was delivered to Darby; that in the conversation with the defendant nothing was said about defendant's son, Leotis Gaston, or his title to the truck; that thereafter Boling sold his interest in the truck to McDonald; and that on January 6th (1926) defendant took possession of the truck, after which McDonald instituted this suit for its recovery.

Defendant's witness Leotis Gaston testified that the truck was his property and that he authorized his father (defendant) to sell it.

Charles C. Gaston (defendant) testified that his son, Leotis Gaston owned the truck and told him to sell it; that he sold it to Rufus Darby, a contract being drawn up between witness and Darby as to the sale of the truck, which contract was reduced to writing at the time of the trade. Defendant offered to introduce his contract in evidence. Plaintiff's objection was sustained. The contract as offered reads:

"Belleville, Ala., Oct. 10/25.

"I Leotis Gaston This day sell my truck to Rufus Darby For the sum of $450.00

"$75 paid on Oct. 15th Bal to be paid as Follers

Oct 24th $25.00

Oct 31 25.00

Nov 7 25.00

Nov 14 25.00

Nov 21 25.00

Nov 28 25.00

Dec 5 25.00

Dec 12 25.00

Dec 19 25.00

Dec 26 25.00

"1926 Jan 2 25 00

Jan 9 25.00

Jan 16 25.00

Jan 23 25.00

Jan 30 25.00

"Eny time that eny of these payments are not paid I Leotis Gaston has the right to seaze truck as his own.

"Lee Otis Gaston

"R. M. Darby."

This witness further testified that after he sold the truck to Darby, for his son Leotis, the plaintiff (McDonald) and Boling and Darby came to his place of business and had a conversation with him relative to this truck; that the understanding between witness and McDonald and Boling was that they were to make the payments; that witness told them how the trade was with witness and Darby, that "we had retained the title to the truck and we would hold the title to the truck and the truck stood for itself and at any time they failed to make any of the payments we reserved the right to go and take possession of the truck; that was the general understanding. Yes sir, they understood and agreed to it. I am speaking about McDonald and Boling and Darby. They were to pay me $25 a week and McDonald and Boling were to pay the last $200. I think their payments began sometime in December, I think probably the first of December theirs were to begin. Mr. Darby was to pay the other." And that witness got the contract and showed it to them and showed them how much was due, and that there is a balance unpaid on the purchase price.

Plaintiff offered in evidence the replevin bond executed by defendant.

Defendant again offered in evidence the contract, and, plaintiff's objection being sustained, filed the following motion: "Now comes C. C. Gaston in the above stated cause and moves the court to transfer this cause of action to the equity side of the docket or court for the reason that he cannot properly make his defense in this court in this: That he is claiming the right to the possession of said property under and by virtue of an equitable mortgage or lien executed by R. M. Darby on October the 10th, 1925. And affiant further shows unto your Honor the plaintiff had actual knowledge of said equitable mortgage or lien at the time he traded for the same. That this court sitting at law is unauthorized to give full force and effect to said equitable mortgage or lien and unless this cause of action is transferred to the equity side of the docket the affiant will lose the benefit of said defense."

Demurrer to this motion was sustained.

Judgment went for the plaintiff, and defendant prosecutes this appeal.

Hybart & Dickey, of Evergreen, for appellant.

Jones & Jones, of Evergreen, for appellee.

THOMAS J.

The question of possession, and that of title to the personal property under the contract of sale, and that of modification of the original contract, were material facts for the determination of the jury. Sovereign Camp W. O. W. v. Hoomes, 122 So. 686.

Under proper issues and conditions of the evidence, a witness should be permitted to testify of possession. Steed v Knowles, 97 Ala. 573, 12 So. 75; Davis v. Reed, 211 Ala. 207, 100 So. 226; Driver v. Fitzpatrick, 209 Ala. 34, 95 So. 466; of the ownership of personal property, Dickey v. Vaughn, 198 Ala. 283, 73 So. 507; ...