Harmon v. Goetter

• Decision Date: 03 May 1889
• Citation: 87 Ala. 325,6 So. 93
• Parties: HARMON v. GOETTER ET AL.
• Court: Alabama Supreme Court

6 So. 93

87 Ala. 325

HARMON v. GOETTER ET AL.

Supreme Court of Alabama

May 3, 1889

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

This was an action of detinue brought by the appellees, Goetter Weil & Co., against the appellant, John F. Harmon, Sr., and sought the recovery of certain specifically described articles of merchandise. Issue was joined on the plea of non detinet. On the trial it was shown that the goods sued for were sold by plaintiffs to the firm of Harmon Bros., upon the express stipulation that they were to be paid for upon receipt of the invoice. The purchase was made from plaintiffs by one of the members of the firm of Harmon Bros. and this agreement for a cash trade was made after the refusal of plaintiffs to sell to them on credit. One of the plaintiffs testified that the goods and invoice were sent to the firm on the day of the sale. Defendant objected to the witness testifying that the invoice was sent to the firm, on the ground that the invoice itself was the best evidence. The court overruled this objection, and defendant excepted. The witness further testified, against defendant's objection and exception, that he afterwards saw the invoice in the possession of Harmon Bros., and, further, that the goods had never been paid for. It was also shown that Harmon Bros. had sold the goods to defendant, together with their entire stock of merchandise, shortly after they were bought from plaintiff; that attachments had been sued out by different creditors of Harmon Bros., and had been placed in the hands of the sheriff, to be levied on the said goods; that said attachments had been levied on a part of the goods so sold by Harmon Bros. to defendant. One Goldman, a witness for plaintiffs, testified "that he was present when the goods sued for were taken possession of by the sheriff of Bullock Co.; that he went to the sheriff, who told him, in the presence of the defendant, that he had not levied [the attachments] upon the goods sued for, *** and the defendant made no reply." Defendant moved to exclude said declarations of the sheriff from the jury, but the court overruled the motion, and defendant excepted. Defendant offered to testify that when he bought the stock of goods and before any attachment was levied upon them, he offered them to several merchants in Union Springs, and was offered but 65 cents on the dollar of their first cost. Upon objection by plaintiffs the court excluded this testimony and defendant excepted. It was shown that the entire stock of goods was sold by Harmon Bros. to defendant for a pre-existing debt of $5,000, and the goods were estimated at about $4,500.

Among the charges given by the court to the jury was the following "If you are reasonably satisfied from the evidence that the sale of the goods by plaintiffs to Harmon Bros. was not on a credit, but for cash, which was to be paid on the receipt of the invoice by remittance in cash or check, and the goods were shipped under this agreement, and the remittance was not made, or the goods paid for, then the title did not vest in Harmon Bros., and they could not pass a title to the defendant in this case; and you should find for the plaintiffs so far as this proposition is concerned." Defendant excepted to this charge.

The court, at plaintiffs' request, gave the following charges, to all of which defendant excepted: (1) "If the jury believe from the evidence that plaintiffs sold the goods sued for to Harmon Bros., upon condition and under an agreement that they were to be paid for upon their receiving the invoice, and that Harmon Bros. received the goods and the invoice, and failed to pay for the goods, and that said goods were in the possession of the defendant at the time this suit was commenced, then the jury must find for the plaintiffs." (2) "If the jury believe from the evidence that Harmon Bros. bought the goods from plaintiffs upon condition, either precedent or concurrent, that the goods were to be paid for upon their receiving the invoice of the goods, and that they received such invoice and the goods and their failure or refusal to pay for the goods, then the title did not pass to Harmon Bros., and they must find for the plaintiffs, if they further believe...