Lord v. Werneth

• Decision Date: 21 March 1950
• Docket Number: 1 Div. 591
• Citation: 46 So.2d 236,35 Ala.App. 290
• Parties: LORD v. WERNETH.
• Court: Alabama Court of Appeals

Page 236

46 So.2d 236

35 Ala.App. 290

LORD v. WERNETH.

1 Div. 591.

Court of Appeals of Alabama.

March 21, 1950.

Rehearing Denied May 9, 1950.

Chas. Hoffman, of Mobile, for appellant.

Vincent F. Kilborn, of Mobile, for appellee.

HARWOOD, Judge.

Plaintiff below, appellee here, filed suit against the defendant below, appellant here, his complaint as originally filed containing one common count, for money had and received.

The defendant pleaded the general issue; that he had not received any money from the plaintiff or to his use; and that he had no money belonging to plaintiff in his possession or control.

Trial was apparently entered on the above issues.

The plaintiff testified that on 28 April 1947 he had bought a Dodge truck from the Kittrell-Milling Company paying $900.00 down thereon, and had executed 12 notes for the balance of the purchase price, said balance being approximately $1500.00. The notes were each in the amount of $131.41, due and payable on the 28th of each month. The plaintiff, after acquiring the truck, had a 'top' installed thereon at a cost of $278.20.

Plaintiff alleged that on 15 August 1947 he took his truck to defendant's car lot, the defendant being a used car dealer, and entered into a contract with defendant whereby the defendant was to sell the truck for an amount to net the plaintiff $1000.00, the prospective purchaser to assume payment of the notes for the balance due on the purchase price. The defendant advanced the plaintiff $300.00.

The defendant gave to the plaintiff on this occasion the following written instrument:

'Motor # T-12085367

No. ___

8-15 1947

Received of G. K. Werneth

1-1947 Dodge 2 Ton Truck & Stake Body Dollars To be sold for his account, netting him $1000.00 & someone to take over his contract. Advance on $1000.00 is $300.00

$ To be deducted from $1000.00

J. W. Lord'

The plaintiff further testified that at this same meeting he gave to the defendant a bill of sale, dated 15 August 1947, as the defendant 'wanted this to show to whomever bought the truck,' for 'he had to have it to give him the right to sell my '(plaintiff's)' equity in the truck.'

The truck was left in defendant's possession. According to plaintiff the defendant never told him he was going to sell the truck in order to get his, defendant's, money out of it until about a month before the truck was sold, and on that occasion 'When Mr. Lord called me, it was about a month before he sold it, and he offered it back to me for about $1690.00 or $1700.00, and I told him I did not have that kind of money, and that was not our deal. I told him that if he sold it for $5,000.00, I was just looking for $700.00. I said, 'I am expecting you to sell it at your price, but all I look for is $700.00 from you.''

The defendant thereafter sold the truck to one of his former salesmen.

The defendant testified that he undertook to sell the truck as defendant's agent or broker, and thought at the time it was just a question of a few days before he could dispose of the truck for an amount sufficient to net the plaintiff $1000.00, plus a brokerage fee for himself. He did not guarantee to net the defendant $1000.00.

He made extensive efforts to sell the truck by advertisements, demonstrations, telephone calls, etc., but was unsuccessful.

The defendant claimed that on 25 August 1947 he saw the plaintiff and 'I stated to him that the first note was due on the 28th, and if I was going to take these notes up, I wanted protection, and wanted a bill of sale, but that I would still try to get him all of his money. I kept the truck eight months and tried to do so, and then I offered it back to him,' and that following this 'on three different occasions Mr. Werneth would come by there and I would tell him that I wanted my money, and finally I said that the first man who came along that would buy it would get it, to get my money out of it. I told him I wouldn't charge him a nickel of interest. Mr. Werneth said, 'That is the only thing you can do as I cannot take it up.''

Finally after defendant had paid some of the purchase money notes he sold the truck to a Mr. Babtiste on 22 April 1948, who assumed the payment of the remaining purchase money notes, and paid defendant $1170.60 in cash, which amount was the sum defendant had in the truck at this time. Mr. Babtiste was a former salesman for the defendant, but had quit working for defendant on 1 April 1948 to go into the produce business. Mr. Babtiste did not however go into the produce business after buying the truck, but went to work for some company selling trucks.

Mr. F. H. Arnold, one of the witnesses to the bill of sale, testified for the defendant that at the time he signed this instrument as a witness all of the blanks thereon had been filled in, including the date, and that it was signed by the plaintiff in his presence on 25 August 1947, as shown by the instrument.

The record shows that at the conclusion of the plaintiff's evidence his counsel stated that he wished to amend the complaint, and then rest.

The amendment consists of one count, as follows: 'Count Two. Plaintiff claims of the Defendant the sum of Seven Hundred and No/100ths ($700.00) Dollars as a balance due under a contract entered into between the Plaintiff and the Defendant on, to-wit: August 15, 1947 by the terms of which the Defendant did agree to sell for the account of the Plaintiff one 1947 Dodge 2-ton truck and stake body at and for a price of $1000.00 net to the Plaintiff with the purchaser of such truck from the defendant to take over a conditional sales contract under which said truck had been sold to the Plaintiff by Kittrell-Milling Motor Company of Mobile, Alabama upon which there remained a balance due of $1476.92, payable to Kittrell Milling Motor Company in twelve consecutive installments of $131.41 each, the first of which was to become due and payable on August 28, 1947. Plaintiff avers that at the time he and the defendant entered into the aforesaid contract the Defendant did advance to the Plaintiff on account of said net amount of $1000.00 to be received by the Plaintiff on sale of such truck under said contract the sum of $300.00 and that thereafter the Defendant did sell said truck and has failed and refused to pay the plaintiff the balance of $700.00 due the plaintiff on such contract between the plaintiff and the defendant. Wherefore this suit.'

The defendant then demurred to count 2, assigning some 26 grounds in support of his demurrer.

Upon the demurrer being overruled the defendant then filed 5 pleas to count 2.

Plea 1 is the general issue.

Plea 2 is as follows: '2. Defendant avers that on, to-wit, the 15th day of August, 1947 he agreed to undertake to sell said Dodge Truck as the agent of or broker for the Plaintiff and for the account of the Plaintiff, and the Plaintiff stipulated that the minimum price which was acceptable to him was $1,000.00 and the payment by the Buyer of said truck of the installments due under the Plaintiff's conditional sales contract to Kittrell-Milling Motor Company of $131.41 per month for twelve months, beginning on August 28, 1947, and that on August 15, 1947, the Defendant advanced the sum of $300.00 to the Plaintiff against the eventual sale price. Defendant avers that he was unable to affect a sale of said truck for the account of the Plaintiff, and that on, to-wit, August 25, 1947, the Plaintiff executed a bill of sale of said truck conveying title thereof to the Defendant, in consideration of the agreement of the Defendant to pay said installment due to Kittrell-Milling on August 28, 1947 and the remaining eleven installments. And Defendant avers that he paid said installment due on August 28, 1947, and that he either paid or caused to be paid said installments due thereafter as and when the same were due and payable.'

Plea 3 adopts the first sentence of Plea 2, and further avers that the defendant tried for many months to sell said truck, and did sell same for a sum equal to the $300.00 advanced the plaintiff plus the amount of all the installments due on the original purchase price, and that plaintiff was advised in advance by the defendant of the sale at said price, and the defendant made no objection.

Plea 4 asserts that the defendant sold the truck as agent for the plaintiff for the sum indicated in Plea 3, without objection on plaintiff's part, and that there is no balance owing the plaintiff.

Plea 5 avers that the defendant sold the truck for the account of the plaintiff, and with his knowledge and without objection, for the sum above mentioned in Plea 3, and that no balance due plaintiff came into defendant's hands from such sale.

The plaintiff demurred separately and severally to the above pleas. The court overruled the demurrers as to Pleas 1 and 2, and sustained the demurrers as to Pleas 3, 4, and 5.

After submission of the evidence the lower court entered judgment in favor of the plaintiff in the amount of $700.00. The defendant duly filed a motion for a new trial, but before the lower court had ruled thereon he perfected his appeal to this court.

The appellant has made five assignments of error.

Assignment 1 is that the court erred in overruling appellant's demurrer to the amended complaint.

Appellee's counsel contends that this assignment is too general to warrant a review. The amended complaint contained only one count. This contention is without merit. Allison-Russell-Withington Co. v. Sommers, 219 Ala. 33, 121 So. 42.

In support of this assignment appellant's counsel argues several grounds assigned in support of this demurrer to count 2.

He asserts that several of the grounds point out the failure of the count to state whether the alleged contract was written or oral; that it fails to state that the truck was delivered by the defendant after his sale thereof; that it fails to state whether the sale by the defendant was for cash or for credit.

The count was faulty in its omission to state...