Weinstein v. Freyer

• Decision Date: 02 May 1891
• Citation: 93 Ala. 257,9 So. 285
• Parties: WEINSTEIN v. FREYER.
• Court: Alabama Supreme Court

9 So. 285

93 Ala. 257

WEINSTEIN v. FREYER.

Supreme Court of Alabama

May 2, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

This was a statutory action of detinue, brought by the appellee F. L. Freyer, against the appellant, J. H. Weinstein, and sought to recover in specie a piano, piano-stool and cover. The facts, as disclosed by the bill of exceptions are stated at length in the opinion. There was judgment for the plaintiff, and on this appeal, prosecuted by the defendant, the judgment of the lower court is assigned as error.

Jackson E. Long and Morris Loveman, for appellant.

Cabaniss & Weakley, for appellee.

CLOPTON J.

By the written contract introduced in evidence Freyer & Co. agreed to sell the piano in controversy to Paul Franklin for $300 payable in installments, stipulating that the title and ownership should remain in them until the entire purchase money is paid, and reserving the right, in case of default in the payment of any part thereof, and the failure of Franklin to return the property on demand, to take possession by legal process. Such contract being, according to our later decisions, a conditional sale, the title does not pass until the contract price is paid, notwithstanding delivery of possession; and a bona fide purchaser of the property from the vendee, acquiring only his conditional title, is not protected against a recovery by the original vendor, unless he has conferred on his vendee indicia of ownership other than mere possession, or has waived or forfeited his right in the property. Sumner v. Woods, 67 Ala. 139; Fairbanks v. Eureka Co., Id. 109. The contract between Freyer & Co. and Franklin was made October 29, 1885, in the state of Georgia, where the vendors and the vendee then resided, and where the property was situated. Franklin, having retained possession in that state for about two and a half years, removed to this state, bringing the piano with him, and about a year thereafter sold it to defendant, who paid a valuable consideration without notice of Freyer & Co.'s title or right. The bill of exceptions recites: "The defendant further introduced in evidence certain sections of the Code of Georgia to the effect that, in conditional sales of personal property in that state, reserving title in vendor until property was paid for, the reservation of title is invalid as against third parties, unless the contract of sale is in writing and acknowledged, and duly recorded within 30 days from its execution; but that the same is valid as between the parties, whether in writing or not, and whether recorded or not." Defendant insists that, the contract of sale having been made and executed in Georgia, his title is determined by the laws of that state, and that the reservation of title, the contract not having been recorded, is invalid as to him. The bill of exceptions making no special reference to nor identifying the particular sections of the Code by number or otherwise, we must take and consider the legal effect of the statutes as set out in the record. The general rule is that, when the state where a contract is made is also the place of performance, and the situs of the property, the laws of that state become a part of the contract; and the sufficiency of its execution, its validity, interpretation, and legal effect, and the rights of the parties to the contract, will be governed by the laws of that state wherever its enforcement may be sought. The rule is founded in comity, extended by express or tacit assent, and the force to be given to the laws of one state in another depends "upon its own proper jurisprudence and polity." When the legislation of a state where the suit is brought is positive, its own tribunals must conform thereto. Also "where the nation's customary, unwritten, or common law speaks directly on any subject, it is equally to be obeyed, being of equal obligation with the positive Code. When both are silent, then only can the question properly arise as to which law shall govern." 3 Amer. & Eng. Enc. Law, 502 et seq. The application of this principle is essential to prevent injustice and the introduction of insecurity, uncertainty, and confusion in the transactions of business. The direct question involved in this case came before the supreme court of New Jersey in Safe Co. v. Norton, 48 N. J. Law, 410, 7 A. 418. The contract for the sale of the property was made and performed in Pennsylvania. The property was immediately transported to New Jersey, and afterwards sold to a bona fide purchaser. The reservation of title in a conditional sale is, by the law of Pennsylvania, invalid, as against creditors and bona fide purchasers. The law of New Jersey is the same as in this state. In a suit by the original vendor to recover the property, the...