Warrant Warehouse Co. v. Cook

• Decision Date: 02 November 1922
• Docket Number: 6 Div. 386.
• Citation: 95 So. 282,209 Ala. 60
• Parties: WARRANT WAREHOUSE CO. v. COOK.
• Court: Alabama Supreme Court

95 So. 282

209 Ala. 60

WARRANT WAREHOUSE CO. v. COOK.

6 Div. 386.

Supreme Court of Alabama

November 2, 1922

Rehearing Denied Jan. 25, 1923.

Appeal from Circuit Court, Jefferson County; W. J. Martin, Judge.

Action in trover by Oscar U. Cook against the Warrant Warehouse Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Frank S. White & Sons, of Birmingham, for appellant.

W. T Hill and Harsh, Harsh & Harsh, all of Birmingham, for appellee.

THOMAS J.

The suit is in trover for an automobile; the general affirmative charge was given for the plaintiff.

To sustain his title, plaintiff introduced what purported to be a retention of title contract made to Elcar Motor Sales Company, a corporation, of date September 4, 1918, which was executed by plaintiff alone, filed for record in the probate office of Jefferson county on September 6, 1918, and recites a consideration of $3,315, of which $1,115 was paid in cash on delivery, and the remainder evidenced by promissory notes and it stated that the title to the car remained in Elcar Motor Sales Company until the entire purchase price with interest and recording expenses was paid. The certificate of the judge of probate was to the effect that the record tax to the amount of $3.30 had been paid on that "instrument." The evidence further shows that the notes for the deferred payments recited in the contract were discounted, and they and the contract transferred and assigned by the Elcar Motor Sales Company, a corporation, to the Realty Trust Company indorsed thereon on the date the same were made, September 4, 1918; that the possession of the car continued with the Elcar Motor Sales Company and plaintiff never had possession, but that it was left with the motor sales company to sell for his account.

Plaintiff first testified of the cash payment recited in the contract that it was paid with $1,000 of the capital stock of the Elcar Motor Sales Company, owned by the plaintiff or, as he later testified, he had agreed to sell the stock to the manager of that corporation for the price indicated, and that this debt for contract price of the stock was discharged by the cash payment of $1,115, recited in the contract or agreement of sale of the car in question, and that the Elcar Motor Sales Company paid the Realty Trust Company a sum aggregating $635 on the discount of the deferred payments, notes, and transfer and assignment to it of said contract. Plaintiff further testified that, about the 1st of March, 1919, the Elcar Motor Sales Company failed in business, its manager leaving the city of Birmingham; that plaintiff thereafter paid the remainder of the Elcar Motor Sales Company note to the Realty Trust Company, the last of said notes being paid on July 19th of same year, at which time the Realty Trust Company transferred and assigned to plaintiff all of its title, right, and interest in the contract and the property made the subject thereof.

The authority of L. J. Lively, as agent or sales manager of the Elcar Motor Sales Company, is shown only by his acts as testified by plaintiff. Roberts & Sons v. Williams, 198 Ala. 290, 73 So. 502; Crandall-Pettee Co. v. Jebeles & Colias Conf. Co., 195 Ala. 152, 69 So. 964. The burden of proving agency rests upon the party affirming it. Capital Sec. Co. v. Owen, 196 Ala. 385, 72 So. 8. The expense of recording the instrument in question was, as we have indicated, $3.30, besides the recording fee. This amount, and the sum of $635 paid by the Elcar Motor Sales Company to the Realty Trust Company, were never paid by the plaintiff to Elcar Motor Sales Company.

Defendant's title and immediate right of possession to the property in question (Pinckard v. Cassels, 195 Ala. 353, 357, 70 So. 153; Johnson v. Wilson & Co., 137 Ala. 468, 34 So. 392, 97 Am. St. Rep. 52; Corbitt v. Reynolds, 68 Ala. 378; Elmore v. Simon & Bro., 67 Ala. 526; Booker v. Jones' Adm'x, 55 Ala. 266; Thrasher v. Neeley, 196 Ala. 576, 72 So. 115) is sought to be established as follows: That it was conducting a warehouse for the storing or housing of such personal property from and on the 11th of September, 1918, continuously until the time the suit was brought, and that as such it was in the possession of the car, having it in its warehouse on and from said date. Whereupon defendant offered to prove that it was conducting a warehouse in the city of Birmingham, which it was authorized to do under the laws of Alabama, on the date the car was placed in its possession on September 11, 1918; that it had no knowledge or notice of the contract under which plaintiff claimed title to the car at the time defendant received the car for storage from the Elcar Motor Sales Company, which company was in possession of the car, and delivered that possession to defendant, who thereupon or immediately issued and delivered to the sales company its negotiable warehouse receipt for the car; that the sales company used and attached such warehouse receipt as collateral security to a note, which it made to the First National Bank of Birmingham for $1,650 and obtained from the bank such sum, with defendant's indorsement of said note, that the same was not paid by the Elcar Motor Sales Company at maturity and was paid by defendant in order to obtain possession of its negotiable warehouse receipt for the car.

On objection of plaintiff, defendant was denied the right to make proof of such facts, to which due exception was reserved. In this ruling the court was in error. The title to the car did not vest absolutely in plaintiff upon the execution of the contract, since the title thereto was retained by the terms of that instrument in the Elcar Motor Sales Company until entire purchase price and expenses of recording were paid. It is without dispute that amounts aggregating $635, paid to the Realty Trust Company by the Elcar Motor Sales Company as indorsers of plaintiff's notes, and the expense of recording the contract were never paid to the latter company by plaintiff.

The burden of proving payment is on the party asserting the same; and to the extent of the aforementioned sums, paid by the Elcar Motor Sales Company, plaintiff has not made proof. Snodgrass v. Caldwell, 90 Ala. 319, 7 So. 834; Pollak v. Winter, 173 Ala. 550, 554, 55 So. 828. That is to say, the court committed error in not permitting the defendant to prove that it was such a warehouseman, authorized by law to receive such property on storage, at the time it received the car in controversy for storage from the party rightfully in immediate possession of the same. So also should defendant have been permitted to introduce the negotiable warehouse receipt issued by it to the Elcar Motor Sales Company, and prove that said receipt was pledged as collateral security to the First National Bank for an advance in money made thereon by the bank to the Elcar Motor Sales Company; that defendant was the indorser on the sales company's note; that there was a failure of payment by the maker thereof; and that defendant paid the note in order to reclaim its negotiable warehouse receipt, and had no knowledge, or notice of facts amounting thereto, of the alleged sale of the car to plaintiff at the time its receipt was issued, pursuant to the terms of the statute and the articles of its creation. Gen. Acts 1915, p. 661. So, also, should the court have admitted parol evidence to the effect that the number of the car as contained in the receipt was not its true number; that it had no other car from the Elcar Motor Sales Company in storage than the car in question, and made the subject of the warehouse receipt whatever its true number was. A. G. S. v. Norris, 167 Ala. 311, 315, 52 So. 891; Churchill v. Walling, 205 Ala. 509, 88 So. 582.

The affirmative charge should not be given for plaintiff, if there is evidence reasonably affording an inference adverse to the right of recovery by the party asking the general charge, or from which the jury might draw an inference adverse to such party. McMillan v. Aiken, 205 Ala 35, 88 So. 135; Bowen v. Hamilton, 197 Ala. 418, 73 So. 5; Amerson v. Coronoa Coal Co., 194 Ala. 175, 69 So. 601; Sou. States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63. If it is not manifest from plaintiff's testimony that the transaction was a mere "arrangement" by which money might be borrowed to meet a financial emergency of the Elcar Motor Sales Company and to furnish it available moneys by which plaintiff's shares of stock in that company might be purchased, it was a reasonable inference that the jury might draw, instead of having the court take a contrary view and instruct them by the general affirmative charge. On this phase of the evidence a jury question was presented. Sou. States Fire Ins. Co. v. Kronenberg, supra; Lysle Mill Co. v. Nor. Ala. Gro. Co., 201 Ala. 222, 77 So. 748. So, also, of the nature and extent of the authority in the agent or sales manager of the Elcar Motor Sales Company to take shares of the capital stock of the corporation in payment for the car. Especially was this authority a fact for determination by the jury, in view of his agreement to pay a premium for that stock, $1,115 for stock of the par value of $1,000. Where the authority of the agent rests in parol, and there...