Singer Sewing Mach. Co. v. Hayes

• Decision Date: 08 November 1927
• Docket Number: 6 Div. 88
• Citation: 114 So. 420,22 Ala.App. 250
• Parties: SINGER SEWING MACH. CO. v. HAYES.
• Court: Alabama Court of Appeals

114 So. 420

22 Ala.App. 250

SINGER SEWING MACH. CO. v. HAYES.

6 Div. 88

Court of Appeals of Alabama

November 8, 1927

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action in trespass by Mrs. R.R. Hayes against the Singer Sewing Machine Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fort Burton & Jones, of Birmingham, for appellant.

Ewing, Trawick & Clark, of Birmingham, for appellee.

SAMFORD J.

The cause was tried on counts 3, 9, and 10, each claiming damages from defendant for and on account of a trespass in the taking of a certain sewing machine of which plaintiff was in possession, and count 11, claiming damages quare clausum fregit, and charged the breaking and entering of plaintiff's residence in her absence, and in a manner greatly to the humiliation of plaintiff. There were special pleas setting up a contract which authorized defendant to enter and seize the machine. To these pleas demurrers were interposed and sustained on the ground that the defense pleaded was available under the plea of the general issue and on the trial this defense was allowed and passed on both in evidence and the charge of the court to the jury.

It is now the settled rule in this state that reversible error will not be predicated upon erroneous rulings of the trial court in sustaining demurrers to special pleas, when and where the defendant can and does have every advantage of such pleas under the plea of the general issue. Atlantic Coast Line R. Co. v. Carroll, 208 Ala. 361, 94 So. 820; Wilson v. Orr, 210 Ala. 93, 97 So. 133; Whitaker v. Hofmayer, etc., 211 Ala. 160, 99 So. 911.

The plaintiff purchased from the defendant company a certain described sewing machine on what is known as the "installment plan"; i.e., a payment cash and deferred payments of equal amounts at stated intervals, until the full amount is paid. Title to the machine is retained in the company, and provision is made in the contract that in case of default in any payment when due:

"It is expressly understood and agreed by and between the parties aforesaid that, if the rent above agreed to be paid, or any part thereof shall be unpaid on the day agreed upon, as aforesaid, or if default shall be made in any of the conditions or agreements herein contained, to be kept by the party of the second part, then in that case this lease shall be forfeited and ended, without notice, at the election of the said company or its representative.

"At the termination of this lease by forfeiture, the said party of the second part agrees to deliver up possession of said sewing machine to the said party of the first part in as good condition as when the same was received, ordinary wear excepted, and, in case said sewing machine is not delivered up voluntarily, the said company or its representative is hereby authorized by the said party of the second part to enter any premises under his control where said sewing machine may be found, and take same and carry it away, without process of law, and the said party of the second part hereby waives any right of action for trespass or damages which he might or could have against the said company or its representative by reason of the party of the first part or its representative procuring, or attempting to procure, possession of said sewing machine, after

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