Griffin v. State

• Decision Date: 06 October 1970
• Docket Number: 6 Div. 5
• Citation: 47 Ala.App. 278,253 So.2d 337
• Parties: George GRIFFIN, Alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 337

253 So.2d 337

47 Ala.App. 278

George GRIFFIN, Alias v. STATE.

6 Div. 5.

Court of Criminal Appeals of Alabama.

Oct. 6, 1970.

Rehearing Denied Nov. 17, 1970.

McCollough & McCollough, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

CATES, Judge.

Upon a consideration of the application of the appellant for a rehearing, the former opinion is withdrawn and the following becomes the opinion of the court.

Hindering a creditor by removing, etc., a mortgaged car; Code 1940, T. 14, § 363; three years in the penitentiary.

The instrument on which the State pitched its case was signed by the defendant in May, 1964. However, other than its printed words it was at that time otherwise completely blank and undated, without a description of the car, without a vendee, without a purchase price, without covenants of warranty or limitations, exceptions, reservations or exceptions. As such it was a nullity under the Statute of Frauds in the Sales Act then extant. Code 1940, T. 57, § 10. Hammond v. Winchester, 82 Ala. 470, 2 So. 892; Riley v. Capital Air Lines, Inc., D.C., 185 F.Supp. 165; Green v. Firestone Tire & Rubber Co., 26 Ala.App. 454, 161 So. 833.

Moreover, the blank signed form was delivered to Griffin's then attorney who himself wrote a contemporaneous note:

'I will put auto in storage--Use as security on expenses involved in case--he is to continue to make payments on auto.'

No other written proof extrinsic to the blank bill of sale was adduced by the State.

Later on July 24, 1964, the lawyer filled in the blanks of the bill of sale making Himself the vendee for $1500.00, excluding a chattel mortgage for an estimated $950.00 (not here of concern), described the car and inserted July 23, 1964 as the date of Griffin's signature.

On the same day, July 24, 1964, the lawyer testified that he sold the car for $1700.00 to one Flavius Coleman. For $900.00 the attorney stated that he got a net pay-off and cancellation of the chattel mortgage of Credit Services Corporation.

This attorney was, by virtue of a recording on March 2, 1964, in the probate office, on constructive notice of a chattel mortgage conveying the car and other goods to Clarice Cox to secure $2,500.00. He received actual notice in September or October 1964 from the District Attorney's office. Whether or not he had already disbursed the remainder of the purchase price paid by Flavius Coleman does not appear in the record before us.

The defendant testified that he signed the blank bill of sale on a Sunday afternoon in the lawyer's office, only himself and the lawyer being present. The State's proof casts doubt on this account only by indirection, i.e. that one W. O. Jackson was also present and witnessed the signature. Yet Jackson was not a witness at the trial.

Williston on Sales, Vol. 1, § 112, regarding § 4 of the Sales Act, which was embodied in Code 1940, T. 57, § 10, says:

'Where attempt is made to authorize the other party to the contract to fill in the blanks an insuperable difficulty arises. As will be seen, one party to a contract cannot make the other his agent to execute a memorandum. An agency to fill in blanks seems in effect the same thing. At the time the signature is made it does not authenticate the memorandum and unless the blanks are filled in by some one, himself capable to signing the document effectually, so that his adoption of the signature already there may be regarded as a signing at that time, there can be no signed memorandum. The question in regard to the correction of a memorandum is similar. Anybody but the other party to the contract may be authorized to correct an existing memorandum, but the other party on principle may not.' (footnotes omitted)

In Walker v. Palmer, 24 Ala. 358, it is said that an agent authorized to sell cannot sell to himself. Such a transaction is void as respects the principal unless ratified. Clay v. Cummins, 201 Ala. 34, 77 So. 328; Myers v. Ellison, 249 Ala. 367, 31 So.2d 353.

We are not privy as to the details of the attorney's sale of the car to Flavius Coleman. See Dearing v. Lightfoot, 16 Ala. 28.

We do not say a lawyer may not take a mortgage to secure his fee. But an attorney who does business with his client must be prepared to turn square corners. Verner v. Mosely, 221 Ala. 36, 127 So. 527.

In Long v. Powell, 194 Ala. 438, 69 So. 585, the court, per Mayfield, J., said:

'* * * It is true that the mortgagor was in jail when he executed the mortgage, and executed it to his attorney, and this, of course, did cast on the mortgagee the burden of showing the good faith of the transaction, and that no fraud or undue influence was practiced upon the mortgagor. * * *.'

Code 1940, T. 9, § 21, reads as follows:

'All contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of some work of charity, or in case of necessity, or contracts for carrying passengers or perishable freight or transmissions of telegrams or for the performance of any duty authorized or...