W.S. Brewbaker, Inc. v. McClinton
| Citation | 70 So.2d 813,37 Ala.App. 474 |
| Decision Date | 16 February 1954 |
| Docket Number | 3 Div. 950 |
| Parties | W. S. BREWBAKER, Inc. v. McCLINTON. |
| Court | Alabama Court of Appeals |
Wm. S. Duke, Montgomery, for appellant.
Godbold & Hobbs, Montgomery, for appellee.
Count one of the complaint was in detinue to recover possession of 'one Dorsey flat trailer MC-10, Serial No. 3177 and the fifth wheel attached thereto,' with the value of the hire or use thereof during the detention.
Count two was in trover for the conversion of said chattels. During the trial count two was withdrawn by plaintiff.
The cause was tried by the court without the intervention of a jury, and resulted in a verdict in favor of the plaintiff for the property sued for, together with $500 damages for its detention. The plaintiff filed replevin bond on April 3, 1951. The property being in possession of the successful party when the judgment was rendered, its alternate value was not assessed.
Appellant's first insistence is that the amendment changing the date of the alleged detention from March 9, 1951, to 'to-wit' 2nd day of March, 1951, in count one of the complaint, constituted a new cause of action, for that, the date of the detention was not laid under a videlicet in the original count, and the demurrer thereto was improperly overruled. There was no error in the court's action in overruling the demurrer. The argument is that the effect of the amendment was to increase the amount claimed for the use or hire during the detention.
'An amendment so as to increase the amount claimed as damages does not, as a general rule, involve a change in the cause of action.' 41 Am.Jur. p. 501, Sec. 304.
In Commonwealth v. A. B. Baxter & Co., 235 Pa. 179, 84 A. 136, 42 L.R.A., N.S., 484, the court held that a change in the measure of damages without any change in the standard for measuring the damages, does not amount to the introduction of a new cause of action.
Moreover, we doubt that the objection to the amendment was properly raised. The following cases hold that defendant's remedy was by motion to strike and not by demurrer. Turner v. Roundtree, 30 Ala. 706; North Italian Colonial Co. v. Janovich- Calafiore Co., 166 Ala. 201, 52 So. 339; Culverhouse v. Glenn, 247 Ala. 622, 25 So.2d 719; Isbell v. Bray, 256 Ala. 1, 53 So.2d 577.
The evidence shows without dispute that the Dorsey flat trailer was attached, by means of the fifth wheel, to a truck belonging to A. T. Parker. The truck, loaded with lumber for Gamble Brothers, broke down on the road and an employee of Gamble Brothers, with the mistaken idea that the truck was owned by Bonner and Beale, notified appellant to go get it. Appellant acting on the instructions of the man at Gamble's, who had no interest in the truck and no authority to give directions concerning it, pulled the truck and trailer into his place of business and repaired the truck. No repairs were made to the trailer or fifth wheel. Mr. Parker had no knowledge of the break-down and did not learn that his truck was in appellant's possession until after the repairs had been made. Appellee was renting his trailer to Mr. Parker for twenty per cent of its gross earnings.
When appellee learned his trailer was in appellant's possession he made demand for its return. He was told it was being held subject to the repairs on the truck and he would have to get it through the man who brought it in. Appellee then went with Mr. Parker to appellant's place of business and Mr. Parker requested appellant to let appellee have the trailer. This request was also refused.
The appellant insists that the evidence showed the trailer and fifth wheel were attached to the truck in such fashion that they became merged with and made a part of the truck and that appellant was holding the truck, trailer and fifth wheel as a unit until the bill for the repair of the truck was paid. There was dispute in the evidence as to whether or not the fifth wheel could have been removed from the truck without cutting it loose with a welder's torch.
The general rule is that a garage man acquires no lien for repairs to an automobile made without the knowledge or consent of the owner. Jordan v. J. E. Rotten & Co., 23 Ala.App. 465, 126 So. 893; Blashfield Cyclopedia of Automobile Law and Practice, Vol. 7A, Sec. 5103; 53 C.J.S., Liens, § 7, p. 852. Nor does the statute confer a lien by implication upon the property of a person who is not responsible for the debt. 53 C.J.S., Liens, § 7, p. 852.
The evidence shows the defendant did not have a lien on any part of the property, and the fact that a third person owned...
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Allstate Ins. Co. v. Reeves
...for a garageman acquires no lien for repairs to an automobile without the knowledge or consent of the owner. W.S. Brewbaker, Inc. v. McClinton, 37 Ala.App. 474, 70 So.2d 813 (1954). The recovery of the value of goods or services on the principle of unjust enrichment is founded upon equity. ......
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Jones v. City of Huntsville
...506, 79 So. 267; Wilson v. City of Russellville, 209 Ala. 617, 96 So. 870. However, estoppel must be pleaded. W. S. Brewbaker, Inc. v. McClinton, 37 Ala.App. 474, 70 So.2d 813. The above quote from Wills and followed by the decision in Garner v. City of Anniston, 178 Ala. 430, 59 So. 654, i......
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Dawson v. Thorpe, 4 Div. 33
...in trover, and defendant cannot use it as a defense, though there are facts to support it in the evidence. W. S. Brewbaker, Inc. v. McClinton, 37 Ala.App. 474, 70 So.2d 813. Appellant's last argued assignment of error is that her plea of res judicata should have been sustained by the court.......
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