Vick v. Rogers, 6 Div. 831

• Decision Date: 21 March 1950
• Docket Number: 6 Div. 831
• Citation: 45 So.2d 332,35 Ala.App. 227
• Parties: VICK v. ROGERS.
• Court: Alabama Court of Appeals

Page 332

45 So.2d 332

35 Ala.App. 227

VICK v. ROGERS.

6 Div. 831.

Court of Appeals of Alabama.

March 21, 1950.

J. Wagner Finnell and Wm. D. Partlow, Jr., of Tuscaloosa, for appellant.

Geo. Van Tassel, of Tuscaloosa, for appellee.

CARR, Judge.

This is a suit on a promissory note. In the court below the judgment was in favor of the plaintiff.

The evidence in appellee's behalf tends to show that he sold two Ford trucks to the appellant for $1250 each; that included in the sale was equipment not attached to the trucks for which the appellant agreed to pay $500 in excess of the purchase price of the trucks; that the appellant paid the $2500 and gave a note at the same time for the balance of $500 which represented the agreed price for the extra equipment. This note is the basis of this suit.

The appellant contends that it was agreed that the purchase price of the two trucks would be $3000; that this amount was in violation of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 901 et seq., and the note given in part payment was void for this reason.

In his oral charge the trial judge gave this instruction: 'Now, if you chould find that the amount of the note should be reduced by reason of the trucks being sold for some amount more than the ceiling price and that the plaintiff is responsible for the ceiling price being fixed wrong, that is, if the ceiling price has been fixed wrong, and the plaintiff was responsible for that, of course, the plaintiff would not be entitled to recover--to collect above what the ceiling price would have been if he had given the true facts, and, therefore, the amount due on the note would be reduced accordingly. As an illustration, if he made some statement to the OPA office that caused the ceiling price to be fixed at $100 too much, then, his note would be reduced $100.00. If his statement to the OPA office caused his ceiling price to be $500 or more too much, he would not be entitled to collect anything in this suit.'

Appellant excepted to this excerpt.

At the request of the appellant the court gave this written charge: '3. I charge you gentlemen of the jury, that if you believe from all the evidence in this case that the note on which the Plaintiff bases his case was given for an amount in excess of the ceiling price, then this note is void and the plaintiff may not recover.'

It is apparent that the quoted portion of the oral charge is not in accord with the written charge.

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