Universal C. I. T. Credit Corp. v. Weeks, 4 Div. 19
| Decision Date | 23 December 1970 |
| Docket Number | 4 Div. 19 |
| Parties | UNIVERSAL C.I.T. CREDIT CORPORATION v. Horace WEEKS. |
| Court | Alabama Court of Civil Appeals |
Williamson & Taber, Greenville, for appellant.
W. H. Baldwin, Andalusia, for appellee.
On February 4, 1966, Douglas G. Williams purchased an automobile from Turner Motor Company in Selma, Dallas County, Alabama. Williams resided in Dallas County. At the time of sale, Williams executed an instrument titled 'Alabama Conditional Sale Contract', to Turner Motor Company, which contract was assigned to plaintiff below, and appellant here.
By a provision of the instrument, title was retained to the automobile by the seller or assigns until payment of the time balance thereon. Other material provisions were (a) that the car shall be at the customer's risk (b) that the car would not be sold, or encumbered (c) time is of the essence and if default on payment the full balance may be declared due and payable (d) holder may, without notice, demand, or legal process, enter any premises where car may be found and peaceably take possession and retain all payments (e) car may be sold and after sale any unpaid balance to be paid by customer.
The first payment was due March 10, 1966, and monthly thereafter until time balance of $4094.70 was paid.
The instrument was recorded in the Dallas County Probate office on February 9, 1966.
Payments were made to plaintiff-appellant beginning March 10, 1966, and continued until April 1967.
The undisputed evidence is that the automobile remained in Dallas County until August 18, 1966, on which date Williams sold it to appellee in Opp, Covington County, Alabama. Appellant did not learn of the sale to appellee until Williams stopped making payments in April, 1967. It then later located the automobile in appellee's possession.
Whether demand was made for the automobile by appellant is in dispute. Suit for conversion was filed by appellant against appellee on December 6, 1968, in the Circuit Court of Covington County, Alabama.
Answer to the complaint was filed by appellee, by which he pleaded the general issue and that he was a bona fide purchaser for value without notice.
Trial was held December 1, 1969, and jury verdict returned in favor of defendant-appellee. Judgment was entered thereon. Motion for new trial was filed by appellant and denied by the court on February 2, 1970. This appeal followed.
Assignment of error argued in brief consists largely of the refusal of the trial court to give to the jury plaintiff's written requested charges 1 and 2. The denial of the motion for new trial is argued by adoption of arguments of assignments 1 and 2. Assignment of error 3 is directed to a portion of the court's oral charge which stated that the jury must find from the evidence that plaintiff had made demand of defendant for the automobile prior to suit before there could be a verdict for plaintiff. This assignment is not for our consideration, as appellant took no excepton to the court's oral charge at the time it was given, and thus failed to make such available for assignment as error on appeal. Prince v. Bryant, 274 Ala. 134, 145 So.2d 837; Goodwin v. Hall, 275 Ala. 297, 154 So.2d 654.
Appellant's written charges Numbers 1 and 2, refused by the court, were the affirmative charge with hypothesis and the general affirmative charge, respectively, as to appellant's right to recover, with direction that damages should be awarded as determined by the jury from the evidence, but in no event more than the amount sued for.
Our examination of the evidence convinces us that it is without conflict that there was a conversion of appellant's property by appellee on the date of his purchase of the automobile from Williams--to-wit, August 18, 1966, the date charged in the complaint. The evidence further is without dispute that the automobile came into appellee's possession wrongfully, in the eyes of the law, and such wrongful assumption of possession or dominion over personal property of another does not require that a demand for return or surrender thereof be made in order that the rightful owner recover in a suit for conversion.
We will first show that in the purchase of the automobile appellee, by his own testimony, was not a bona fide purchaser for value without notice as alleged in his plea 2.
Appellant contends in brief that the instrument titled a 'Conditional Sale Contract' is in fact, by its terms a chattel mortgage. We are inclined to agree with appellant.
The Supreme Court in the case of Bern v. Rosen, 259 Ala. 292, 66 So.2d 711, stated the Alabama rule to be that regardless of the title given an instrument its provisions must determine its judicial construction. If it contains a provision for payment of a deficiency in the event of repossession and sale, such instrument is one for retention of title for security only, and is deemed in effect a chattel mortgage. 47 Am.Jur. 38, Section 845, General Motors Acceptance Corp. v. Crumpton, 220 Ala. 297, 124 So. 870, 65 A.L.R. 1313.
Though we agree that by its terms, the contract involved herein is in effect a chattel mortgage, we do not think such to be material or necessary to this decision.
Either of the recording statutes, Title 47, Section 123, or Section 131, would be sufficiently applicable to negate appellee's contention that he was a purchaser without notice.
The contract was duly recorded in Dallas County on February 9, 1966. The vehicle was sold to Williams and he resided in Dallas County. The vehicle remained in that county until sold to appellee on August 18, 1966. At the time of such sale, title was in appellant and there was an unpaid balance on the contract. The contract gave to appellant the right to immediate possession in the event of sale by Williams. In fact, Williams was forbidden to sell the automobile.
Appellee had constructive notice under the recording statutes of all these encumbrances and thus he could not be a purchaser without notice.
Williams, having no title, could not convey title to appellee. Title 57, Section 29, 1940 Code of Alabama. McRae v. Bandy, 270 Ala. 12, 115 So.2d 479.
'The wrongful assumption or dominion over property of another in subversion and denial of his rights constitutes a conversion of such property irrespective of whether there was...
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