Bates v. Crowell , 122 Ala. 611 ( 1898 )

DOWDELL, J.

— A motion to dismiss the bill for Avant of equity, as also a demurrer going to the equity of the bill, Avas overruled by the court below. The defendant then ansAvered the bill, and also filed a plea thereto, setting up in said plea, as res adjudicate of the matters complained of in complainant’s bill, a judgment in a detinue action in the circuit court, wherein the defendant had recovered of the complainant the horse in question under the contract, exhibit “A.” A demurrer was sustained by the court to this plea, no objection being made as to this mode of testing the sufficiency of the plea. The plea failed to show that complainant here, avIio Avas defendant in the detinue suit, had or could have had the benefit of the matters set up in his bill, as a defense in said suit, and for that reason the plea Avas insufficient, if for no other. It is plain from the averments of the plea that the defendant here, and plaintiff in the detinue action, recovered judgment for the horse in that action on the strength of his title under the contract, which is here set out as exhibit “A” in complainant’s bill. This contract, as apparent on its face, was a conditional sale, and standing álone Avas bound to bé so held and construed in a court of law, — Warren v. Lid dell, 110 Ala. 232; Montgomery Iron Works v. Smith, 98 Ala. 644; Sumner v. Woods, 67 Ala. 139; Turner v. Wilkinson, 72 Ala. 361. Nor was it competent in a court of law to sliow by parol evidence, that it was iptended by the parties to be a mortgage. It is not permissible in a court of law to vary the terms of. a written contract by parol evidence. — 1 Brick. Dig. 865, § 866; Bragg v. Massie, 38 Ala. 89; Jones v. Trawick's Admr., 31 Ala. 253. It is only by reason of the statute that the defense of usury can be set up in an action of detinue under a mortgage. The provisions of the statute do not extend to cases where the action in detinue is based upon a title under a conditional sale. If the contract, which on its face was a conditional sale, was in fact, as averred in complainant’s bill, a mortgage or security for a loan, and the transaction 'was usurious, the complainant’s only means of relief against the usury was by bill in equity to redeem, offering to pay principal and legal interest; or, if as in the present case, the loan and legal interest thereon, had been paid to the creditor, then by bill for cancellation of the contract and recovery of the mortgaged property. The jurisdiction of chancery for the cancellation of contracts is an old and well established doctrine. — 3 Pomeroy’s Equity, (2d ed.), § 1377, and authorities cited in note.

The defendant in his answer admits that he sold the horse to the complainant at and for the price of one hundred and twenty dollars, to be paid in weekly installments of $6 a week. The contract, exhibit A, embraces a Avagon and set of harness; the only reference in the testimony to this property, is to it as being the property of the complainant Crowell, and this circumstance tends to show that the contract Avas something more than a conditional sale of the horse. The testimony of the witnesses for the complainant is to the effect that the transaction was a loan, and when taken in connection Avith the circumstances attending the transaction, the weight of the evidence sustains the decree of the city court on the facts.

We find no error in the record, and the decree of the court below must be affirmed.