J.L. McClure Motor Co. v. McClain

• Decision Date: 05 October 1949
• Docket Number: 7 Div. 6.
• Parties: J. L. McCLURE MOTOR CO. v. McCLAIN.
• Court: Alabama Court of Appeals

42 So.2d 266

34 Ala.App. 614

J. L. McCLURE MOTOR CO. v. McCLAIN.

7 Div. 6.

Alabama Court of Appeals

Oct. 5, 1949

Edwin B. Livingston, of Sylacauga, and Wm. S. Duke, of Montgomery for appellant.

C W. McKay, of Ashland, for appellee.

HARWOOD, Judge.

The trial below, had before the court without a jury, was on a count claiming damages for the conversion by the defendant of plaintiff's automobile. The court rendered a judgment in favor of the plaintiff, and assessed damages at $850.00. From such judgment the defendant perfected his appeal to this court.

James McClain, the plaintiff below, appellee here, resided in Ashland, Alabama. On June 22, 1948 he drove his automobile to Montgomery for the purpose of selling it. At the auction lot he met several acquaintances, among them Newman Davidson. Davidson introduced McClain to a man named W. T. Harris telling Harris that McClain wanted to sell his automobile. In a three cornered conversation between McClain, Davidson, and Harris, the plaintiff, McClain, told Davidson and Harris he would take $950.00 for his automobile. Harris refused this offer, and countered with an offer of $800.00. Then according to the plaintiff:

'I told him I owed $229.80 on the car; that I owed something on my home, and I wanted to sell the car to pay off my debts and if I hadn't owed something I wouldn't have sold the car as cheap as I did; that I would sell for $850.00.

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'Yes, I told Mr. Harris, I says, 'I will take $850.00 in order to pay my debts off, and pay the balance on the car (which was $229.80), provided the check is all right and you give me the money.' He says 'I ain't got the money, the check is as good as money.''

At this point Mr. Davidson told the plaintiff that Harris' check was good because he had taken checks on him, and had sold Harris a car that day for $1900.00.

The plaintiff then told Harris that he 'would take the check because Mr. Davidson said he had one, and he had been transacting business with him and I wanted my money because I had to pay my debts.'

Harris then gave plaintiff a check in the amount of $850.00.

At this point it appears that Mr. Davidson left. Harris then presented to the plaintiff a paper which he signed without reading, after being told by Harris that it 'was signing the title.' This paper was received in evidence and is a printed form of a 'Bill of Sale of Motor Vehicle,' the blanks being filled in the handwriting of Harris. It acknowledged the receipt of $850.00, and contained general covenants of warranty of title in McClain. After signing the paper the plaintiff delivered his automobile, and tag receipt therefor to Harris.

The following day, June 23, 1948, the plaintiff and Davidson went to the Alexander City bank on which the Harris checks were drawn to cash them. The bank refused to honor the checks because of insufficient funds. An agreement was entered into between the parties to this suit that at the time Harris issued the checks to plaintiff and Davidson his account in the bank was around $25.00.

After payment of the checks was refused plaintiff and Davidson located Harris in Alexander City and demanded their automobiles back. Harris told them they had come too soon, that he planned to sell their cars and put the proceeds in the bank to cover the checks. Upon further insistence that their automobiles be returned Harris gave them an order on a man in LaGrange, Georgia, who he said had the cars, to return them to plaintiff and Davidson.

Plaintiff and Davidson then went to LaGrange to the used car lot Harris had directed them to, but were unable to locate either the man Harris told them to see, or their automobiles.

The next day, June 24, 1948, plaintiff and Davidson returned to Alexander City. There they met McClure, the defendant, and engaged him in conversation. It developed that McClure was in Alexander City also for the purpose of finding Harris, who had given McClure a bogus check in a car trade. It further developed that McClure had secured plaintiff's automobile in the trade he made with Harris.

McClure, the defendant, testified that when he bought the plaintiff's automobile Harris gave him as evidence of his title the bill of sale executed by the plaintiff on June 22, 1948 conveying the automobile to Harris. Defendant paid Harris $675.00 for said automobile, and received a bill of sale from Harris therefor.

In his review of the evidence and judgment the court below concluded that this case was within the doctrine enunciated in Barksdale v. Banks, 206 Ala. 569, 90 So. 913, and Moore v. Long, 250 Ala. 47, 33 So.2d 6, which cases construed together, are to the effect that where a sale is made for cash, or with the understanding that a check represents cash, no title passes to the vendee until...