Norris v. Kelly

• Decision Date: 19 June 1947
• Docket Number: 6 Div. 579.
• Citation: 249 Ala. 281,31 So.2d 129
• Parties: NORRIS v. KELLY.
• Court: Alabama Supreme Court

31 So.2d 129

249 Ala. 281

NORRIS v. KELLY.

6 Div. 579.

Supreme Court of Alabama

June 19, 1947

Curtis Maddox & Johnson, of Jasper, for appellant.

Fred Jones and John Posey, both of Haleyville, for appellee.

BROWN Justice.

This is an action of detinue by appellee against appellant to recover possession of 'One 1944 Chevrolet Truck 1 1/2 ton capacity, Motor No. 651006, also one utility trailer, 1944 model with truck' together with 'the value of the hire or use thereof.'

The general issue in the action of detinue is 'non detinet' or an averment that the allegations of the complaint are untrue. Code of 1940, Tit. 7, § 225; Berlin Machine Works v. Alabama City Furniture Co., 112 Ala 488, 20 So. 418; 3 Mayfield's Digest, p. 57, § 22. Defendant's plea 1 'not guilty' appears to have been treated as the general issue by the court and the parties. The defendant also pleaded: '2.

That the plaintiff claims title or right to the property sued for by virtue of a mortgage and this defendant is an innocent purchaser of said property, for a valuable consideration without any notice or knowledge that Plaintiff held a valid, legal, existing claim on said property. 3. That plaintiff claimed right and title to the property sued for by virtue of a certain mortgage executed to him by Jack Kelly, Jr. and that before the commencement of this suit said mortgage had been paid or lien discharged and waived and that if the Court finds that the Defendant is due to pay anything upon said mortgage or that the plaintiff is entitled to recover under said mortgage, then the Defendant asks the Court to ascertain the amount due under said mortgage, in accordance with the statute.'

The defendant also filed pleas 4 and 5 asserting:

'4. * * * that the ceiling price of said truck and trailer was less than the amount charged as the purchase price; the amount charged as the purchase price was $3,000.00; this excessive charge was illegal; that the illegal consideration is a part of the mortgage indebtedness secured by said mortgage. That defendant purchased the truck and trailer from Jack Kelly, Jr., who gave the mortgage containing the illegal consideration and he pleads these facts in bar of the recovery of said truck and trailer.

'5. * * * and that the balance due on said mortgage should be ascertained by the court and that the excessive selling price, as determined by the Court, over and above the ceiling price of the truck and trailer should be deducted from the amount due on the truck, * * *.'

The plaintiff filed a general demurrer to pleas four and five stating no specific causes. Code 1940, Tit. 7, § 236; Deslandes v. Scales, 187 Ala. 25, 65 So. 393.

The case was tried before the court without the intervention of a jury, resulting in a judgment for the plaintiff, fixing the value of the truck sued for at $1400.00 and the value of the trailer at $1200.00, total $2,600.00, and ascertained the amount due on the mortgage at $2095.00 and the value of the use and hire of the truck and trailer at $200.00. From this judgment the defendant appealed.

The evidence shows without dispute that the plaintiff sold the truck and trailer to his twenty year old son who was married and had a wife, to aid him in transporting lumber from Alabama to Evansville, Indiana; that the price of the truck and trailer was $2500.00 for which the son executed his notes and mortgage, which was duly recorded in the office of the Judge of Probate of Winston County, before the transactions involved in this suit, the county in which the parties resided and also the county in which the defendant resided. That in the operation of his business the son Jack Kelly, Jr., incurred indebtedness to defendant for material and repairs on the truck and trailer on open account, that he borrowed money from his uncle Allen Kelly and incurred other debts. The money owed to Allen Kelly was on open account without security. The evidence is also without dispute that the plaintiff, the mortgagee, authorized his son Jack Jr., to take the truck and trailer to Evansville, Ind., and sell it for the account of the plaintiff, check to be drawn payable to plaintiff. Said mortgagor, acting in accordance with these instructions, had found a purchaser, who was willing to purchase for a price but the completion of the sale was interrupted because the truck or the trailer did not have on it the serial number. Young Kelly carried with him on this trip a bill of sale which plaintiff had given him when he purchased the truck and trailer.

Kelly Jr., notified his father that he had a purchaser but could not complete the sale without the serial number. Plaintiff obtained the serial number which he delivered to Woodie Eaton to be carried to the son so he could complete the sale. The defendant and Allen Kelly ascertained that Jack Kelly, Jr., had been authorized by plaintiff to sell the truck and that plaintiff had furnished to Eaton the serial number to be delivered to Jack, Jr., so that he could complete the sale. Allen Kelly and defendant, as the evidence goes to show, got on Eaton's truck and rode with him to Evansville, Indiana, and surreptitiously obtained the said serial number from the truck of Eaton without Eaton's knowledge or consent and defendant and Allen Kelly contacted young Kelly, went to see the man who had agreed to purchase and who was waiting for the serial number, and Norris then informed said prospective purchaser that he had a claim on the truck and trailer. The serial number was never delivered to young Kelly. When the purchaser was informed by Norris that he had a claim on the truck and...