Prosser v. Bailes
Decision Date | 08 March 1949 |
Docket Number | 8 Div. 739. |
Citation | 40 So.2d 732,34 Ala.App. 329 |
Parties | PROSSER v. BAILES. |
Court | Alabama Court of Appeals |
Rehearing Denied March 29, 1949.
Julian Harris and Norman W. Harris, both of Decatur, for appellant.
Joe L. Payne, of Huntsville, for appellee.
The appellant here was the defendant in the detinue suit below. The subject matter of the suit was a truck. The case was submitted to the court without a jury, and judgment was rendered in favor of the plaintiff (appellee here) for the truck, or its alternate value.
The agreed statement of facts upon which the case was submitted is as follows:
'1. On and prior to the 14th day of July, 1948, O. B. Roberson who was engaged in the business of buying and selling automobiles in Decatur, Alabama, doing business under the name of Roberson Motor Company, and who is hereinafter referred to as Roberson, was the owner of the truck sued for hereinafter referred to as the truck.
'2. On the 14th day of July, 1948, one Ralph Cozzalino, who operated under the alias of Roy and James R. King, came to the place of business of Roberson, and was in possession of one 1947 model 2-door Chevrolet sedan, which he told Roberson belonged to him, and he offered to sell said Chevrolet sedan to Roberson. The said Cozzalino was in possession of a bill of sale made out to the said James R. King covering said Chevrolet sedan and showing that he had purchased the same and also had in his possession registration receipt showing that he had bought for said Chevrolet sedan Alabama license tag No. 47 C 6669, and Roberson thought that the said Cozzalino was the owner of said Chevrolet sedan, and the parties agreed upon a trade, by the terms of which Cozzalino sold and traded said Chevrolet sedan to Roberson in consideration of Roberson's trading to him the truck sued for and paying him $1,050.00 in cash, and pursuant to said agreement Cozzalino under the name of James R. King gave Roberson a bill of sale to the Chevrolet sedan and delivered possession of the Chevrolet sedan to Roberson, and Roberson paid Cozzalino $1,050.00 in cash and delivered to him possession of the truck sued for, and gave him a bill of sale to the truck sued for made out in favor of James R. King, showing a sale of the truck from Roberson to James R. King for a consideration of $650.00. Roberson acted under the belief that the said Cozzalino, whose name he thought was James R. King, was the owner of said Chevrolet sedan, and Roberson had not prior thereto known or been acquainted with Cozzalino, and did not have possession of any facts or circumstances which led him or which would have led a reasonable man to any belief but that the said Cozzalino was the owner of said Chevrolet sedan, or would have put them on notice that he was not the owner of the same.
'3. On July 15, 1948, the said Cozzalino went to the place of business of the plaintiff in Huntsville, Alabama, the plaintiff being then and there engaged in the business of buying and selling automobiles. The said Cozzalino was in possession of the truck sued for, and told the plaintiff that he was the owner of it, and showed the plaintiff a bill of sale to the truck sued for made out to James R. King and executed by Roberson. Cozzalino told the plaintiff that he wanted to sell the truck and the plaintiff thereupon purchased said truck from Cozzalino, who was then acting under the name of Roy King, and the plaintiff paid to him the sum of $450.00 in cash for said truck, and the said Cozzalino, under the name of Roy King, executed and delivered a bill of sale to said truck to the plaintiff, showing a consideration of $450.00, and delivered possession of said truck to the plaintiff. At said time the plaintiff thought that the said Cozzalino was James R. King or Roy King, and that he was the owner of said truck, and the plaintiff did not have possession of any facts or circumstances which would have led him or would have led a reasonable man to believe otherwise.
'4. On July 17, 1948, the plaintiff sold the truck sued for to Ray N. Penney for a consideration of $525.00 and delivered possession of said truck and executed a bill of sale to the said Penney.
'5. On July 29, 1948 Roberson learned that the Chevrolet sedan which he had purchased and received from Cozzalino, as hereinabove recited, had been stolen from its owner in Knoxville, Tennessee on July 13, 1948, and that the said Chevrolet sedan, in fact, was the property of Dr. P. B. Folger, of Dobson, North Carolina, and the said Folger made demand on Roberson for possession of said Chevrolet sedan, and Roberson surrendered the same to its owner, Dr. P. . B. Folger. On the same date Roberson learned that the truck sued for was in the possession of the said Ray N. Penney, in Madison County, and he went to see the said Penney and advised him that he was the owner of said truck, and Penney turned possession of said truck over to Roberson, and thereafter, on the 31st day of July, 1948, Roberson sold the truck sued for to the defendant for a consideration of $600.00, and delivered possession of said truck and of a bill of sale covering the same to the defendant. The defendant at the time he purchased said truck from Roberson thought that Roberson was the owner of said truck, and the defendant did not have knowledge of any facts or circumstances which would have led him or a reasonable man to believe otherwise, or which would have put him on notice to the contrary.
'6. On July 30, 1948, Ray N. Penney notified the plaintiff that Roberson had claimed to be the owner of the truck, and that Roberson had assumed the physical dominion of the truck sued for, and demanded the return of the purchase money for said truck which he had paid to the plaintiff on July 17, 1948, and the plaintiff thereupon returned to the said Penney the said sum of $525.00, and Penney thereupon surrendered to the plaintiff the bill of sale covering said truck which the plaintiff had given to Penney upon the sale of said truck to Penney, and on August 3, 1948 the said Penney, at the plaintiff's request, executed a bill of sale purporting to sell said truck to the plaintiff.
The transaction between Roberson and Cozzalino constituted an exchange of property. In determining whether or not title has passed under an exchange the principles relating to sales govern exchanges of property. 1 Williston on Sales, Section 170.
In determining whether title to the truck passed from Roberson to Cozzalino, the ultimate question is, did Roberson, at the time he delivered possession, and also a bill of sale, to the truck intend to transfer title thereto.
The fact that Cozzalino impersonated himself as King, and the fact that the implied warranty as to the title to the Chevrolet Sedan forming a consideration for the exchange was false, would not render the exchange void ab initio, but voidable at the option of Roberson. Williston on Contracts, Rev.Ed., Vol. 5, Section 1517; Hickey v. McDonald, 151 Ala. 497, 44 So. 201, 13 L.R.A.,N.S., 413; McBride & McMillan v. Kyle, 207 Ala. 273, 92 So. 455; Drake v. Nunn, 210 Ala. 136, 97 So. 211; Restatement of Contracts Vol. 2, Section 476.
Cozzalino thus secured a voidable title to the truck. Prior to avoidance of the contract of exchange by Roberson he, Cozzalino, sold and delivered the truck to the plaintiff below, who under the facts was a bona fide purchaser.
'Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided he buys them is good faith, for value, and without notice of the seller's defect of...
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