Smith & Fay v. Montgomery Ward & Co.

• Decision Date: 26 April 1923
• Docket Number: 3 Div. 609.
• Citation: 209 Ala. 317,96 So. 231
• Court: Alabama Supreme Court
• Parties: SMITH & FAY v. MONTGOMERY WARD & CO.

96 So. 231

209 Ala. 317

SMITH & FAY v. MONTGOMERY WARD & CO.

3 Div. 609.

Supreme Court of Alabama

April 26, 1923

Appeal from Circuit Court, Autauga County; B. K. McMorris, Judge.

Suit on account by Smith & Fay against R. L. Cox, with attachment in aid of suit. Intervention by Montgomery Ward & Co. From a judgment for the claimant, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Affirmed.

W. P McGaugh, of Montgomery, for appellant.

Gipson & Booth, of Prattville, for appellee.

McCLELLAN J.

The main action was commenced by a complaint filed December 17 1919, and in aid of the suit, defendant having left this state, writ of attachment was issued at the suit of Smith &amp Fay, plaintiffs, against R. L. Cox, which was levied upon a player piano. Montgomery Ward & Co., a nonresident corporation, intervened as claimant of the player piano. The court, trying the case without jury, rendered judgment in claimant's favor. The plaintiffs made a motion for new trial. The court overruled this motion; and from the action of the court in overruling the motion for new trial the appeal is prosecuted.

The claimant is a "mail order house." The defendant Cox signed at Prattville, Ala., and forwarded to the home office of Montgomery Ward & Co. in Chicago, Ill., the order (a printed form employed in the claimant's business), the material parts of which read:

"Date Jan. 11, 1919.

"Montgomery Ward & Co., Chicago-Gentlemen:

Piano Number 267D6054

"You may ship me Player Piano

( Mahogany )

() Price $465.00, for

Finished in (Walnut )

() 30 days' trial.

(Oak )

"If at the end of thirty days I decide to buy the instrument, I will send you the amount of the freight charges you will have paid to ship it to me, together with a first payment of $10.00, and I will pay you $8.00 on piano each

$12.00 on player piano

month, without interest, until the instrument is paid for in full; then it becomes my property.

"If at the end of 30 days' trial I decide that the instrument is not satisfactory, I will notify you to send me shipping papers for its return at your expense for freight charges."

It is agreed that of the purchase price ($465) Cox paid about $97. It was further agreed that upon the receipt of the order by the claimant in Chicago, Ill., the claimant shipped the instrument to Cox at Prattville, Ala., as stipulated in the order. It appears without dispute that Cox exercised his unfettered option to buy the instrument within the 30-day period stipulated in the order.

It is clear, we think, that the phrase in the order signed by Cox viz. "then it becomes my property," was intended to leave the title to the instrument in Montgomery Ward & Co. until the purchase price was fully paid by Cox according to the stipulation of the order. The word "then" refers, unmistakably, to the condition of full payment. No other possible effect can be accorded the quoted phrase in the relation it is employed. To attribute to that phrase any other effect would require wholly unwarranted change in the language manifesting the intent of the parties. The character of the contract thus made by the parties was that of conditional...