Long-Lewis Hardware Co. v. Abston

• Decision Date: 03 March 1938
• Docket Number: 6 Div. 276.
• Citation: 235 Ala. 599,180 So. 261
• Parties: LONG-LEWIS HARDWARE CO. v. ABSTON.
• Court: Alabama Supreme Court

180 So. 261

235 Ala. 599

LONG-LEWIS HARDWARE CO. v. ABSTON.

6 Div. 276.

Supreme Court of Alabama

March 3, 1938

Rehearing Denied April 21, 1938.

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Action in trover by Carl Abston against the Long-Lewis Hardware Company for conversion of a truck. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923 § 7326.

Affirmed.

Huey &amp Welch, of Bessemer, for appellant.

Howard H. Sullinger, of Bessemer, for appellee.

KNIGHT Justice.

Trover for the conversion of "One Second Hand Chevrolet one and one-half Ton Truck."

The cause was twice tried in the circuit court, each trial resulting in verdict and judgment for plaintiff. On motion of the defendant, the trial court set aside the verdict rendered on the first trial and awarded the defendant a new trial. However, the court on return of the second verdict for the plaintiff overruled the defendant's second motion for a new trial, and duly entered a judgment on the second verdict. This action of the court is made the basis for one of appellant's assignments of error.

It is earnestly insisted here that under the evidence the defendant was due the general charge upon one or more grounds. The main insistence in this respect is, that the plaintiff, at the time of the alleged conversion, did not have such special or general interest in or title to the property as would support an action of trover, and further that the plaintiff did not have the possession, or the immediate right of possession of the property, at the time of the alleged conversion.

The gist of an action of trover is conversion, and to support such action there must be a concurrence of the right of property, general or special, and possession, or an immediate right of possession, in the plaintiff at the time of the conversion. W. O. Broyles Stove & Furniture Co. v. Hines Director General, 204 Ala. 584, 87 So. 19; Granade v. United States Lbr. & Cotton Co. 224 Ala. 185, 139 So. 409; Booker et al. v. Jones' Adm'x, 55 Ala. 266.

It has been held by this court that the "fact of conversion does not necessarily import an acquisition of property in the defendant." Howton v. Mathias, 197 Ala. 457, 73 So. 92, 95. The conversion may consist, not only in an appropriation of the property to one's own use, but in its destruction, or in exercising dominion over it in exclusion or defiance of plaintiff's right. McGill v. Hollman, 208 Ala. 9, 93 So. 848, 31 A.L.R. 941, 948; Conner v. Allen, 33 Ala. 515; St. Louis & S. F. Ry. Co. v. Georgia, F. & A. Ry. Co., 213 Ala. 108, 104 So. 33.

The evidence in this case shows, without dispute, that the plaintiff purchased the truck in question from the defendant; that he made a cash payment on the same, in addition to a car which he delivered to the defendant at the time, as part payment. To secure the balance due defendant for the truck, which balance was $155, a "conditional sale contract" was executed by the defendant and plaintiff. This balance was payable: $20 on November 6, 1934, and $15 on the 6th day of each succeeding month thereafter, until the entire balance was paid. By the terms of the contract the legal title to the truck was to remain in the seller until the purchase price was paid in full. The full purchase price of the truck was $268, which included "term charges of $43.00," and which last-named item covered cost of insurance.

The plaintiff's evidence tended to show: That within a short while after the truck was delivered to him under the "conditional sale contract" it was damaged by fire, and he called upon the defendant, at its place of business in Bessemer, Ala., on a day named, which was Sunday, to know what he must do about having the truck fixed, and that he was advised by one of defendant's agents, then in charge of defendant's business, and who had prepared the sale contract, that the defendant would have the truck repaired, and delivered back to plaintiff in a few days, and that the defendant would take care of the cost of the repairs, out of the insurance.

That following this conversation, the Tucker Motor Company sent out and got the truck, and carried it to its garage for repairs, but that it was not repaired. That on or about the 1st day of February, 1935, which was before the maturity of the February note (plaintiff had fully paid all prior notes) and before there was any default in the payment of any of said notes, the plaintiff again went to Bessemer, and called upon the defendant, inquiring about his truck. That the plaintiff was then told by Mr. Williams, defendant's agent in charge and management of its automobile department, and whose authority is not questioned, that the truck had been brought from the Tucker Motor Company, at Tuscaloosa, and was then in defendant's warehouse. This man Williams then carried plaintiff to the defendant's warehouse,...