Windham v. Hydrick

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 314
• Parties: WINDHAM v. HYDRICK.
• Court: Alabama Supreme Court

72 So. 403

197 Ala. 125

WINDHAM v. HYDRICK.

6 Div. 314

Supreme Court of Alabama

May 18, 1916

Rehearing Denied June 30, 1916

Appeal from Circuit Court, Lamar County; Bernard Harwood, Judge.

Action of detinue by R.V. Windham against G.R. Hydrick. From a judgment for defendant, plaintiff appeals. Transferred from the Court of Appeals under section 6, p. 449, Act of April 18, 1911. Judgment affirmed.

Walter Nesmith, of Vernon, for appellant.

Beasley & Wright, of Fayette, for appellee.

MAYFIELD J.

This is an action of detinue to recover an old, worn-out mower estimated to be worth from $35 to $50. The suit, during the last four years, has been in and through the justice court, the circuit court, and the Court of Appeals, and has at last reached this court; and we are now asked to pass upon every question of fact and of law which the ingenuity of counsel could raise in the justice court or in the circuit court. But for the fact that the witnesses are not before us, the trial is as much de novo here, as it was in the circuit court. There never has been involved any intricate or doubtful question of law, upon which the rights of the litigants depend. These rights depend solely upon a petty disputed question of fact on which the parties have personal feelings. The right and title to the mower depends upon the question whether or not appellant purchased it from Mrs. Annie Atkins, a widow, in part payment of a debt evidenced by mortgage which her deceased husband owed appellant. Appellant contends that she did make an absolute sale of the mower, warranting the title thereto, and that upon the strength of the sale, and of the sale and delivery to him of certain other articles, he canceled the debt of $794.65, which the husband had owed him, and surrendered and delivered to Mrs. Atkins the mortgage in question, which covered the property conveyed, except the mower and rake in suit. Appellee claims that he purchased the property in question from Mrs. Atkins for $35, and that she delivered the same to him. The alleged sale to appellant however, antedated the one claimed to have been made to appellee; and, if made as claimed by appellant, he had the title and the right to possession and should have recovered. If, however, there was no sale by Mrs. Atkins to appellant then appellant properly failed in his suit. Mrs. Atkins and other witnesses for appellee testified that there was no absolute sale to appellant as and when, he claims the sale was made. The witnesses who claim to have heard the conversations between appellant and Mrs. Atkins say that the arrangement was not an absolute sale, but only an agreement to sell on condition that appellant had a mortgage on the mower; and it is conceded that he had no such mortgage. This was really the main disputed question, upon which all others depended. Many witnesses were examined and much testimony was taken by both parties, and submitted to the justice court and to the jury in the circuit court for their determination. The justice, and the jury likewise, decided in issue in favor of appellee; and from the verdict of the jury and the judgment of the circuit court entered thereon, appellant prosecutes this appeal.

Disputed questions of fact cannot, of course, be reviewed or revised on this appeal, there being ample evidence to support a verdict for either party. We can here review only questions of law properly presented to us.

It is first insisted by appellant that the trial court erred in allowing defendant to prove by appellant and other witnesses the value of mules, wagons, etc., purchased by appellant from Mrs. Atkins at the time he claims he purchased the mower. There was evidently no error in any of those rulings. The plaintiff had voluntarily testified to the purchase of all these articles with the mower, and introduced a receipt as to all or a part thereof, and a showing as to the value of each and as to the amount of the mortgage debt and other debts which Mr. Atkins owed him, and that the property was purchased in payment of these debts. Consequently, not only was it proper to allow, but it would have been error to decline to allow, the defendant to cross-examine plaintiff as to these matters and conversations gone into by him, and to show the real consideration of the sale, and the real value, of each article involved. It was, however, admissible to show the bona fides of the transaction and the...