Howell v. Home Nat. Bank

• Decision Date: 25 November 1915
• Docket Number: 591
• Citation: 195 Ala. 73,70 So. 686
• Parties: HOWELL v. HOME NAT. BANK.
• Court: Alabama Supreme Court

70 So. 686

195 Ala. 73

HOWELL v. HOME NAT. BANK.

No. 591

Supreme Court of Alabama

November 25, 1915

Rehearing Denied Jan. 20, 1916

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Detinue by J.W. Howell against the Central of Georgia Railway and another, wherein the Home National Bank filed claim. From judgment for claimant, plaintiff appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911 Affirmed.

W.O Mulkey, of Geneva, for appellant.

C.D Carmichael, of Geneva, for appellee.

GARDNER J.

Appellant on June 23, 1913, brought statutory detinue against the Central of Georgia Railway and E.B. Baldwin for the recovery of an M.M. Twin motorcycle in possession of the defendant. The property was seized, and on September 8, 1913, appellee filed its claim, executing the necessary bond, and trial was had between appellant and appellee as to the title to the said property (see Code, § 3792), resulting in a judgment for the appellee; the court giving at its request the general affirmative charge. From this judgment the appeal is prosecuted, and the only error assigned is the giving of said charge.

In March, 1913, appellant and the American Motor Car Company, a manufacturer of motorcycles at Brockton, Mass., entered into written negotiations respecting the sale and purchase of a motorcycle. The negotiations and contract are made to appear by correspondence offered in evidence. In reply to letter of appellant said motor company on March 15, 1915, wrote him that they would exchange one of their "new 1913 Twins" for appellant's old machine and a difference of $50. Appellant accepted the proposition, and on April 4 1913, received a letter in which the motor company directed him to send a deposit of $25, with his order and bill of lading for the old machine, and the letter further stated: "We will make shipment by sight draft against bill of lading for the balance." Upon receipt of this letter appellant shipped his old machine and sent the $25 as directed, with the bill of lading. On April 14th the motor company wrote in regard to a slight change in the order, and stated that a memorandum of the agreement was inclosed, and concluded by saying that the machine would be prepared for shipment at an early date. The motorcycle was shipped on May 14th. Appellant received another letter dated May 20th, and testified that about this time he received a bill from the company, dated May 14th, which shows the money consideration as $150, instead of $50, and the balance due as $125, instead of $25, and that this was the first knowledge he had had that $125 was claimed as a balance due.

The machine in question was shipped on May 14th, consigned to "Order of American Motor Company, Notify J.W. Howell." The bill of lading was indorsed by said motor company, and was delivered to claimant, Home National Bank, attached to draft drawn by said motor company in sum of $125 on J.W. Howell and in favor of said bank; the latter discounting same for $124. This draft, with bill of lading attached, reached the collecting bank at Coffee Springs, Ala., and, appellant declining to pay, were returned. Appellant tendered to said collecting bank the sum of $25, and tendered to the railway company the freight charges due, and subsequently brought the said $25 and the freight money and deposited it in court upon bringing this suit.

There is some evidence on the part of claimant indicating that the figures "$50" in the letter of March 15th was a mistake and should have read "$150," as some of the witnesses connected with the motor company testify that the balance due was $125. The record, however, is unsatisfactory, and rather meager details of the transaction are given; but we do not consider this material to a disposition of the cause. Much stress is laid upon the fact that the claimant bank purchased or discounted the draft with bill of lading attached in good faith and in due course of business, and that it is protected under the doctrine of the case of Cosmar Cotton Co. v. First Nat. Bank, 171 Ala. 395, 54 So. 621, 39 L.R.A. (N.S.) 1173, Ann.Cas.1913B, 42. The conclusion we have reached, however, renders a consideration of this insistence unnecessary, and the same is therefore laid out of view.

In this action the burden rested upon the plaintiff to show a legal title to the property involved and the right of immediate possession. This is essential to support an action of detinue. Hensley v. Orendorff, 152 Ala. 599, 44 So. 869. There can be no controversy from this record that the sale and purchase of the motorcycle was considered by both parties to be a cash transaction. It is quite clear that the order and its acceptance did not by themselves constitute a complete sale. The selection of the particular motorcycle to be shipped was left to the plaintiff. As said by this court in Jones v. Brewer, 79 Ala. 545:

"Until a specific machine, with the attachments, is selected from others of the same description, and unconditionally appropriated to the fulfillment of the contract, the sale is not executed, and no property passes. There is not the concurring assent of the contracting parties to the sale of specified property. *** The order and its acceptance do not, by themselves constitute a complete sale. Unless a particularized mortiser is agreed on, to which the contract attaches, the parties only intend an executory agreement. *** But even in such case a selection and appropriation will not pass the property, if it is the intention of the seller notwithstanding to retain the ownership."

Clearly, therefore, up to the time of the shipment of the motorcycle the contract was executory. In A.G.S. Ry. v. Mt. Vernon Co., 84 Ala. 173, 4 So. 356, it is said:

"Whether a transaction is a sale, so as to pass the property, or a sale on condition, or an executory contract of sale, is generally regarded a question of intention to be collected from the terms of the agreement and the attendant circumstances. Where the parties reside at a distance from each other, and the goods are to be transported by a common carrier, the bill of lading represents the property. If the goods, in pursuance of an order, are delivered to the carrier for delivery to the buyer, this is prima facie a constructive delivery to the vendee, and presumptively passes the property. But, if by the bill of lading the goods are to be delivered to the order of the

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