Morningstar v. Stratton , 121 Ala. 437 ( 1898 )

HABALSON, J.

— Action in detinue by B. I). Strat-ton, the appellee, against ITenry Morningstar, the appellant; commenced before a justice of the peace for the recovery of a bicycle with damages for its detention. Judgment having been rendered against the defendant, the cause was appealed by him to the city court of Mobile, Avhere it was tried de novo, Avith similar result, and from the judgment of that court defendant appeals to this court.

The extension of time beyond the term at which a case is tried, for the signing of a bill of exceptions — whether by agreement of the parties under section 616 of Code; or, by the court in term time, under section 617; or, when signed in vacation by agreement of parties under section 618; or by the judge in vacation for further extension under section 619, — must be evidenced by writing, and never allowed to rest in parol.

When the court under section 617, in term time fixes a time within which a bill of exceptions may be signed— nothing appearing in the order to the contrary — the time fixed begins to run from the adjournment of the term.

When further extension is made under the provisions of section 619, and nothing appears in the agreement of the parties or the order of the judge therefor, to the contrary, the extended time begins to run from the expiration of the time fixed by the preAdous agreement or order for extension of time.

All orders by the judge, and agreements of parties or their counsel for extension of time under the provisions of either of said sections of the Code, should bear their true date, and never be antedated.

By calculation of time under the above rules, the bill of exceptions signed in this case, Avas signed in time, and the motion to strike it is denied.

2. It is undisputed that the plaintiff was the owner of the bicycle; that he left Mobile about a year before the trial of this cause, and left the wheel with H. H. Lane, who testified that having it in his possession he loaned it to a man by the name of Quinn, Avho came to him and said that the plaintiff had offered to lend it to him to ride in a bicycle race, and he let him take it, to be returned after he rode the race; that he, Lane, had no authority from plaintiff to lend the wheel to Quinn, and that plaintiff had moved permanently to New York, after the trial in the justice’s court. The evidence also shoAved, that defendant did not defend the suit in the justice’s court, and that plaintiff Avas present at that trial, and testified that he demanded the Avheel of defendant before he instituted the suit.

One Patterson testified for plaintiff, that he knew the wheel and proved its value and the value of it for use or hire; that he heard plaintiff demand it of defendant, and that witness demanded it of defendant for plaintiff before suit, and defendant declined to surrender it, claiming that he had loaned money on it, and would not give it up until the money he had loaned on it was paid. Witness further stated that the tires on the wheel'belonged to him and the wheel itself to plaintiff, and he asked defendant for them, but whether they were delivered to him or not does not clearly appear. . . •

The evidence of the defendant tended to show, that a man by the name of Parquette, on the 11th February, 1897, mortgaged the wheel to the defendant for the sum of $12. Who Parquette was, and how he came to have the wheel, or what connection he had with it, otherwise than that he mortgaged it to defendant, was not shown. It also tended to show, that plaintiff knew the wheel was in defendant’s possession, and that he told defendant, if Parquette did not pay the money and redeem the. wheel, he would.' The suit was begun before the justice to recover the bicycle on the 3rd April, 1897.

The defendant asked the general charge which was refused, and also a second charge, that “If the plaintiff with knowledge of the facts agreed to pay the defendant, at any time before the commencement of the suit, the amount for which the bicycle was mortgaged or pawned to defendant, then the jury must find for defendant.”

3. The first charge for defendant was asked on the theory, that if Patterson owned the tires on the wheel, and plaintiff was the owner of the balance of it, he could not maintain the action. It is not shown as to this matter, that the tires were on the wheel when this suit was instituted, but if they had been on.it, they were there under the evidence, presumably by the consent of Patterson. But again, whether that was so or not, and they were on the wheel, their presence on it did not disentitle the plaintiff who owned it, from suing this defendant, — ■ who owned no interest in it, and who claimed none except through the unauthorized mortgage of Parquette,— to recover it.- — 11 Am. & Eng. Ency. Law, 1089.

4. The second charge was equally without merit. The wheel was mortgaged to defendant by a party, who had gotten unwarranted possession of it and mortgaged it to defendant without the knowledge or consent of plaintiff. The defendant did not thereby acquire plaintiff’s title to the property, and the mere unauthorized mortgage of it by a stranger, is no legal obstacle to plaintiff’s right of possession. What was done by the stranger, Parquette, in mortgaging the property was in no sense-in'representation, or for the benefit of plaintiff, and the fact that plaintiff after he learned that defendant had his wheel and held it under mortgage from Parquette, promised the defendant that if the latter did not pay the mortgage, he would, did not bind him to do so, either as a promise to pay,— for as such the promise was a mere nudum pactum,— or, as between plaintiff and defendant, as a ratification or adoption of the mortgage, for there was no relation, actual or assumed, so far as is shown, as between plaintiff and the mortgagor, of principal and agent, or that the transaction had in it any element of benefit to plaintiff, but on the other hand, was one entirely of detriment to him. — 3 Brick. Dig. 143, § § 18, 20; 1 Am. & Eng. Ency. Law, 429, 431; 19 Ib. 970; Ellison v. Jackson W. Works Co., 12 Cal. 542; 1 Gr. Ev. § 66; Chapman v. Lee, 47 Ala. 143.

There was nothing shown in the motion therefor, for a new trial.

Affirmed.