Ensley Lumber Co. v. Lewis , 121 Ala. 94 ( 1898 )

HARALSON, J.

— Trover for the conversion of personal property.

1. Under repeated decisions of this court, it is held, that when the vendor of personal property expressly retains the legal title until the purchase money therefor is paid, no title passes to the purchaser by delivery of possession, and a purchaser from him cannot defeat a recovery of such property by the original vendor, even though he shows he was a bona fide purchaser from the vendee for value and without notice.-Warren v. Liddell, 110 Ala. 232; Thomason v. Lewis, 103 Ala. 426; Montgomery I. Works v. Smith, 98 Ala. 644.

Tbe evidence in this case shows without conflict, that when E. M. Lewis, as manager of the Lewis Machine Co. on the 16th of March, 1896, sold the property to the Ens-ley Lumber Co. for the conversion of which this suit is brought, it was with the express Avritten condition, incorporated in the notes of the purchaser, that the machinery should “rémain the property of E. M. LeAvis, as manager, until all notes given for said property are paid, and that on default in the payment of any of said notes at maturity or at any time after such default before accepting payment in full of the amount then due, E. M. LeAvis may resume possession of said property without liability on his part to refund any money previously paid on account of said contract.” Nothing could be more explicit to sIioav, that the title to said property did not pass by the transaction of this conditional sale, to the purchaser, but remained in the vendor. The mortgage executed by the vendee, the Ensley Lumber Co., to W. C. Shackleford, conveyed no greater interest to him, than that company OAvned, and he purchased and held the property subject to the legal title of the vendor.—Thomason v. Lewis, supra; Weinstein v. Freyer, 98 Ala. 257.

2. The notes on their face show, that the property for the sale of Avhich they Avere given, Avas not the individual property of E. M. Lewis, but that he Avas the mere manager for the person to Avhom it did belong. As manager he sold it, and to him as such, the notes were made payable. It is not denied and cannot be, for the evidence is Avithout conflict as to the fact, that Mrs. C. E. Lewis, the appellee and plaintiff below, Avas the owner of said property and that E. M. LeAvis, lier husband, as manager for her, sold it to the defendant, the Ensley Lumber Co., and took said purchase money notes therefor. It also shows, that she remained its owner to the time of the trial, and did nothing under the laAvs of this State, so far as appears, to divest herself of the title. It was shown that the notes, at one time, were indorsed by the plaintiff to the Bank of Anniston, as collateral to secure a loan by the bank to plaintiff, Avliicli notes were retained by said bank until October or November, 1897, AArhen having paid the loan, the notes Avere returned to plaintiff by the bank' before this suit Avas instituted. The notes bore the indorsement, “Lewis Machine Co., E. M. Lewis, Mangr.” By this transaction, the legal title to the property, for which the notes were given, did not pass to the bank, and when the loan for which they were hypothecated to the bank was paid, and they were returned to the plaintiff, the legal title to the property, and of the notes as well, were in her.—Berney v. Steiner Bros., 108 Ala. 111; Lakeside L. Co. v. Dromgoole, 89 Ala. 505; Thomason v. Lewis, supra.

3. On the 15th July, 1896, the Ensley Lumber Co. executed to defendant, W. C. Shackleford, the mortgage in evidence of that date for the considerations therein expressed. The machinery was at the time of the execu- ' tion of the mortgage, in Georgia, in the possession of the sheriff, levied on by attaching creditors as the property of the Ensley Lumber Co. By agreement between that company and Shackleford he went to Georgia and paid off and procured the discharge of the attachments, and the machinery was delivered into his possession and control, and he continued in the possession, control and use of the same, through his agent until this suit was brought. After taking possession he was - notified by plaintiff through her agent, that the title to the property was in. her, and her notes for it were unpaid, and requested payment of them, and he refused to pay and asserted his right to the property as superior to hers. At the time the property was conditionally sold by plaintiff to the Ensley Lumber Company, and the notes of that company to the plaintiff, in which the title to the property was reserved, were executed, and at the time said mortgage was executed on the property by the company to said Shackleford, all of them were residents of this State, and said contract was entered into in reference to the laAvs of Alabama. It is a well settled principle, upheld in all courts, that the law of the place of the contract, in the absence of stipulations to the contrary, must govern as to its validity, interpretation and construction ; and as a general rule, when a contract is valid and binding, by the lex loci contractus, it is valid and binding everywhere.—Jones v. Jones, 18 Ala. 248; Evans v. Kittrell, 33 Ala. 449; Cowles v. Townsend, 37 Ala. 77. It'niay be :that a conditional sale of personal 'property entered into in Alabama, unless the vendor complies with the registration laws of Georgia, when the property ■ is taken after its purchase into that State, would not be good as between the original seller and an innocent purchaser for value without notice, in that State, but that could be the case only when their rights are to he determined in Georgia courts. We know of no rule of comity between States that would give to the registration laws of Georgia an extra-territorial force, operative on contracts executed within and with the view of being enforced in this State, when rights growing out of such contracts are sought to be enforced in our own forums. The case of Edgerly v. Bush, 81 N. Y., 199, was one where B. executed to plaintiff a chattel mortgage in New York State, on a span of horses, both parties residing in that State. B. carried the horses to Canada and sold them to a trader, who bought in good faith, without knowledge of plaintiff’s claim. Under the laws of Canada, B. could not reclaim the horses without refunding the price paid for them by the trader. Defendant, a resident of New York, bought the horses in Canada from the purchaser and left them there. Beturning to NeAV York, on refusal to deliver them on demand, the plaintiff sued in trover for their conversion, and it was held he had the right to recover. This decision seems to be well founded in principle, and met the approbation of this court in Weinstein v. Freyer, 93 Ala. 257, and in the case therein cited of Marvin Safe Co. v. Norton, 48 N. J. L., 410.

4. There is nothing in the suggestion that this suit cannot be maintained for that as alleged, no demand was made for the property before it was brought. The proof tended to show an unauthorized disposition of the property by the defendants, the Lumber Company and Shackleford, and when such is the case, no demand, if not made, was necessary.—Haas v. Taylor, 80 Ala. 466; Brown v. Beason, 24 Ala. 466.

5. Nor is there merit in the contention, that plaintiff had no right to maintain his suit against defendants, because they were not joint tort feasors. The rule is, that when one commits a wrongful act, co-operating with other defendants, who had notice of plaintiff’s rights, a joint action for the wrongful act may be maintained against all of them;-but if the wrongful act- was separate and distinct, a joint action cannot be maintained against them.—Powell v. Thompson, 80 Ala. 51; R. & D. R. R. Co. v. Greenwood, 99 Ala. 501.

Here, as stated, the proofs tend- to show a joint conversion of the property by defendants. The- court below, trying the case without a jury,- found the issues in favor of the plaintiff and rendered judgment against defendants, who appeal. We have been unable to discover that its judgment on1 the law and facts was not correct.

Affirmed.