Motor Sales Corporation v. Wisdom

• Decision Date: 12 April 1923
• Docket Number: 6 Div. 866.
• Citation: 209 Ala. 242,96 So. 68
• Parties: MOTOR SALES CORPORATION v. WISDOM.
• Court: Alabama Supreme Court

96 So. 68

209 Ala. 242

MOTOR SALES CORPORATION v. WISDOM.

6 Div. 866.

Supreme Court of Alabama

April 12, 1923

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by H. A. Wisdom against the Motor Sales Corporation. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 440, Acts 1911 Affirmed.

Stokely Scrivner & Dominick and Andrew J. Thomas, all of Birmingham for appellant.

Ben F Ray and Roderick Beddow, both of Birmingham, for appellee.

GARDNER J.

This is an appeal from a judgment recovered by appellee against appellant in an action of trover for the conversion of one Maxwell roadster automobile.

Defendant, as we gather from this record, was engaged in the repair as well as the purchase and sale of automobiles, particularly the Maxwell make of car. Plaintiff was the owner of a five-passenger 1917 model Maxwell touring car, and carried the same to defendant's place of business in Birmingham for repairs. Negotiations were begun between the parties for an exchange of cars, resulting in a trade wherein the plaintiff gave the touring car and a check for $300 in exchange for a Maxwell roadster, 1919 model, of the defendant. Plaintiff took away the roadster which he had required in the exchange, but soon brought it back to defendant's place of business, complaining that it would not run without "jumping out of gear," and offered to rescind the trade; but no agreement was reached as to a rescission. Plaintiff stopped the payment of his check, and, according to plaintiff's version, immediately upon learning this fact defendant, without plaintiff's consent, took charge of the roadster, carried it into its garage, and afterwards sold the same.

The complaint as originally filed sought damages for the conversion of the Maxwell roadster, but was subsequently amended by adding a fifth count seeking damages for the conversion of the Maxwell touring car. Upon the conclusion of the evidence, the trial court gave the affirmative charge for the defendant as to this latter count, and instructed them there could be no recovery for the touring car.

Counsel for appellant strenuously argue that any evidence as to the value of the touring car was irrelevant and inadmissible as the value of the roadster, for the conversion of which the verdict was rendered, could not be determined or influenced by the value of the touring car, citing in support thereof Hay v. Boggs, 77 Wash. 329, 137 P. 474; Sveiven v. Thompson, 110 Minn. 484, 126 N.W. 131; Worrall v. Des Moines Retail Ass'n, 157 Iowa, 385, 138 N.W. 481; Galliero v. Chi. B. & Q. R. Co., 116 Iowa, 319, 89 N.W. 1109-among other authorities which we have read with interest.

None of these cases, however, involved a transaction where the litigation arose between those who were parties to the exchange, such as was presented to the Court of Appeals in Massey v. Fain, 1 Ala. App. 424, 55 So. 936.

However this argument of appellant assumes that at the time the testimony was being offered the pleadings presented only an issue as to the Maxwell roadster, while, as previously stated, the count seeking recovery for a conversion of the touring car was also before the jury, and was only eliminated at the conclusion of the testimony. The evidence therefore offered under these circumstances, tending to establish the market value of the touring car, was admissible without regard to any other consideration. Indeed, plaintiff was permitted, without objection, in the opening of his case to testify that the defendant in effect admitted the market value of his touring car to be $150. Just following this testimony the plaintiff was permitted to show that after this estimate of valuation he had repair work done with the defendant at a cost of $120. The defendant...