Webb v. Dickson

• Decision Date: 28 May 1964
• Docket Number: 1 Div. 169
• Citation: 165 So.2d 103,276 Ala. 553
• Parties: John WEBB, d/b/a Wilcox Tractor Company, v. Jane S. DICKSON, d/b/a South Alabama Pole and Piling Company.
• Court: Alabama Supreme Court

Page 103

165 So.2d 103

276 Ala. 553

John WEBB, d/b/a Wilcox Tractor Company, v. Jane S. DICKSON, d/b/a South Alabama Pole and Piling Company.

1 Div. 169.

Supreme Court of Alabama.

May 28, 1964.

L. Y. Sadler, Jr., Camden, for appellant.

John M. Coxwell, Monroeville, for appellee.

PER CURIAM.

Plaintiff-appellee filed suit in the circuit court of Monroe County against defendant-appellant, with one court in trespass and another in trover, to recover damages arising from the repossession by defendant of a tractor which defendant had sold plaintiff. The jury returned a verdict for plaintiff in the sum of $3,000.00. From a judgment entered therefor, defendant appeals.

It appears from the undisputed evidence that part of the consideration was to be financed over a period of twenty-four months in monthly installments, each maturing as hereinafter appears.

Plaintiff executed and delivered to defendant-vendor (admittedly acting through her agent) a written instrument in form used by Commercial Credit Equipment Corporation in financing the transaction. We may add that, as indicated by other cases before this Court, it is, in substance, the form commonly used to finance such transactions. Such an instrument, as here, has been defined by this court as a mortgage, although part in the form of a conditional sales contract. American Discount Co. v. Beck, 263 Ala. 470, 83 So.2d 232; Bern v. Rosen, 259 Ala. 292, 66 So.2d 711.

It appears in evidence that plaintiff signed an agreement as follows:

'Buyer promises to pay to the order of seller the deferred time balance as shown in above schedule of payments, or in 24 equal installments of $134.85 each, except the final installment which is to be the amount then due, beginning 5-15 1961 and on the same day of each succeeding month until paid. After maturing all installments draw interest at the highest legal rate. Buyer acknowledges receipt of an executed copy of this agreement. Executed in quadruplicate the day and year first above written.' Date above 4-21-61.

As a part of the contract executed by plaintiff there appears as follows:

'Buyer agrees: That title to said property (the tractor) shall not pass to buyer until all the sums due under this contract are fully paid in cash. * * * Time is the essence of this contract; if buyer defaults in complying with any of the terms or conditions hereof, or seller deems himself insecure or the property in danger of misuse or confiscation * * * the full amount then unpaid shall become immediately due and payable without notice, and seller or his assignee or its agent or any sheriff or other officer of the law may either * * * 2. Take possession of said property, with or without process of law, and for this purpose may enter any premises where said property may be found and remove same, and sell said property either at public or private sale with or without notice to buyer * * * and any deficiency shall be paid by the buyer, including reasonable attorney's fee and court costs incurred in the recovery of such deficiency.'

Transfer and assignment of the above instrument was, on April 24, 1961, made by the vendor to Commercial Credit Equipment Corporation, and, by that company, in writing, reassigned to defendant on November 24, 1961.

It further appears from the evidence without dispute that plaintiff became delinquent in payment of the installments due respectively on October 15 and November 15, 1961, concerning which the Finance Company wrote plaintiff on November 22, 1961, as follows:

'Dear Mrs. Dickson:

'Your October 15th and November 15th installments on your Fordson Super Major tractor are past due. When our representative, Mr. Dorrill, called upon you on October 4, you assured him that you would pay your October 15th installment no later than November 1st.

'We have not received your check for October 15th installment and your November 15th installment is also past due. You leave us no alternative but to ask you to immediately forward your check for $270.20 to bring your account current or we will take whatever action necessary to protect our investment.

'We shall look forward to hearing from you within the next five days and our action will impend your reply.'

Plaintiff testified that on November 25, 1961, she mailed a check dated November 27, 1961, in an amount of $270.20 to cover these delinquent installments.

On that same date, November 25th, defendant testified that he repossessed the tractor. The instrument had been assigned and transferred to him on the preceding day. Therefore, it appears when the check was mailed, according to plaintiff's testimony, on November 25th, the Commercial Finance Investment Corporation, was not the owner of the contract, and was without authority to receive the payment. Later, after the tractor was repossessed, the Finance Company, on December 4th, returned the check to plaintiff.

We held in Ison Finance Company v. Glasgow, 266 Ala. 391, 96 So.2d 737(7), that a subsequent agreement may be made to extend the time of payment of a note, but it must be based on a valuable consideration. Citing Cox v. Mobile & G. R. Co., 37 Ala. 320; David v. Malone, 48 Ala. 428; Scott v. Scruggs...