McRae v. Bandy

• Decision Date: 05 November 1959
• Docket Number: 8 Div. 925
• Citation: 115 So.2d 479,270 Ala. 12
• Court: Alabama Supreme Court
• Parties: G. C. McRAE, d/b/a McRae Motors v. Harley B. BANDY and P. E. O'Neal, d/b/a Bandy and O'Neal Auto Sales.

Page 479

115 So.2d 479

270 Ala. 12

G. C. McRAE, d/b/a McRae Motors v. Harley B. BANDY and P. E. O'Neal, d/b/a Bandy and O'Neal Auto Sales.

8 Div. 925.

Supreme Court of Alabama.

Nov. 5, 1959.

Mead & Norman, Birmingham, for appellant.

Britnell & McEntire, Decatur, for appellees.

LIVINGSTON, Chief Justice.

The complaint in this cause is in trover for the recovery of damages for the conversion of one 1956 Bel Aire Chevrolet Automobile. The cause was tried by the Court below without the intervention of a jury and resulted in a judgment for the plaintiffs. The defendant appeals.

Briefly stated, the facts are as follows: One Kenneth Bishop, representing the Bishop Motor Company, went to the place of business of appellees, Harley B. Bandy and P. E. O'Neal, partners, doing business as Bandy and O'Neal Auto Sales, in Trion, Georgia, and purchased from the appellees the Chevrolet automobile in question, and a 1956 Oldsmobile which is not involved in this litigation. Bishop paid for the two cars by check and immediately brought the cars to Alabama. The Chevrolet automobile, the car in question, was taken to the Dixie Auto Auction in Birmingham, Alabama, where it was purchased by the appellant, G. C. McRae, d/b/a McRae Motors. The Dixie Auto Auction paid Bishop for the automobile with a check of the appellant, which was endorsed by the Dixie Auto Auction.

The two cars were bought by Bishop from the appellees on November 27, 1955. The sale by Bishop to the Dixie Auto Auction of the automobile involved was made November 28, 1955, and the same day the Dixie Auction sold the automobile to the appellant.

Appellant carried the automobile to Decatur and sold it to one Henry Lee King on November 29, 1955.

On December 2, 1955, appellees' bank notified them that the check given to them by Bishop in payment of the automobile had been returned as worthless. On December 2, 1955, appellees came to Alabama in search of Bishop and the automobiles, but was unable to locate either Bishop or the automobiles. Appellees did encounter a Mr. Norman, attorney for the Dixie Auto Auction, who told appellees that the car in question had been sold through the Dixie Auto Auction to appellant on November 28, 1955.

On or about December 2, 1955, the appellant was informed by the Dixie Auto Auction that the title to the car was questionable and requested that appellant pick up the car from his customer and return it to them in Birmingham, Alabama. The Dixie Auto Auction Company also requested that appellant stop payment on the check given by him as payment for the Chevrolet automobile, this being the check which the Dixie Auto Auction had endorsed to Bishop.

Appellant contacted his customer, Henry Lee King, and requested King to return the car to them and that he, the appellant, would loan King a car until they could locate a similar one.

It appears from the testimony that appellant was aware on or about December 2, 1955 that the title to the Chevrolet automobile was in doubt.

On December 5, 1955, the appellees made a request that the appellant return the car to them. The appellees were not put in possession of the car but instead the appellant delivered the car to the Dixie Auto Auction, and it was subsequently taken to the State of Georgia and sold. Appellees were first notified on December 12, 1955 that the Chevrolet automobile and been removed from Alabama to Georgia and sold.

There appears in the record certain agreed stipulations of fact to the effect that certain transactions did occur; namely, the sale of the car by Bishop to the Dixie Auto Auction, also the sale by the Dixie Auto Auction to the appellant, the McRae Motors. It was also stipulated that McRae sold the Chevrolet automobile to a customer, Henry Lee King, from whom the appellant later requested the return of the car. It was further stipulated that the car was returned by the appellant to the Dixie Auto Auction Company, who took it to Georgia where it was sold. While the stipulations appear in the record, nowhere do we find it argued that the stipulations would affect the questions of law raised by this appeal.

Under the foregoing facts, we come now to the question of whether the laws of Alabama or the laws of Georgia are controlling. In regard to the purchase of the cars by Bishop from the appellees, a transaction which took place wholly within the State of Georgia, the laws of Georgia are to be applied. As is stated in 11 Am.Jur., Sec. 66, p. 354:

'* * * It is usually stated that the effect generally of any transfer purporting to pass the title to personal property is governed by whether or not title passes by the transaction according to the law of the state in which the property was located at the time of the transaction. * * *'

It was stated in Hallgarten v. Oldham 135 Mass. 1, 46 Am.Rep. 433:

'* * * When a sale, mortgage or pledge of goods within the jurisdiction of a certain State is made elsewhere, it is not only competent, but reasonable, for the State which has the goods within its power to require them to be dealt with in the same way as would be necessary in a domestic transaction, in order to pass a title which it will recognize as against domestic creditors of the vendor or pledgor. This requirement is not peculiar to Massachusetts, but has the sanction of the highest courts of the United States and of other States.'

As further illustration of the point, it was said in Hutchison v. Ross, 262 N.Y. 381, 187 N.E. 65, 68, 89 A.L.R. 1007:

'The courts of the various jurisdictions have with substantial unanimity adopted certain rules. 'Capacity to make a valid conveyance of a chattel is determined by the laws of the State where the chattel is situated at the time of conveyance.' American Law Institute, Tentative Restatement Conflict of Laws, § 275. 'The essential validity of a conveyance of a chattel is determined by the law of the state where the chattel is situated at the time of the conveyance.' Id. § 277. In this state these rules have long been applied to the conveyance of tangible chattels. * * *'

In Georgia, where personal property is delivered to another under an agreement that he is to pay cash therefor, and where the cash payment is made by check, which the person receiving believes to be good, but which afterward proves to be worthless, no contract or sale arises and no title to the property passes, and the vendor may recover possession of the property from the vendee. Chafin v. Cox, 39 Ga.App. 301, 147 S.E. 154; Winton v. Butler, 53 Ga.App. 696, 186 S.E. 773. However, this principle by its express terms is applicable only as between vendor and vendee. The general rule applicable to property other than negotiable securities, that the seller can convey no greater right or title than he has, is only predicable of a simple transfer from one person to another where no other elements intervene. Capital Automobile Co. v. Ward, 54 Ga.App. 873, 189 S.E. 713. We think,...