Brenard Mfg. Co. v. Sullivan , 210 Ala. 200 ( 1923 )

The individuals composing the partnership of the Brenard Manufacturing Company sue J. R. Sullivan on six promissory notes, given by him to them; five of the notes are for $80 each, and one is for the sum of $22. There was judgment for defendant, based on a verdict of the jury in his favor, and from it this appeal is prosecuted.

The court overruled demurrers of plaintiff to plea 5-A of defendant. This plea alleges the consideration for the notes wholly failed, that they were given for the purchase of three talking machines to be delivered at a future date. The machines were shipped to defendant at Altoona, Ala., in October 1920, and arrived during that month, but defendant failed to take the machines from the depot, and in January, 1921, plaintiff instructed the railroad to return the machines to them at Geneva, Iowa, which the railroad did, and defendant has received nothing for the notes.

This plea sets up, or attempts to do so, that after the defendant failed to take from the depot the machines, for which the notes were given, the plaintiffs treated the machines as theirs, and took charge of them as their own, and could not now maintain an action for the purchase price of them.

This principle is thus stated in 24 Rawle C. L. § 358, p. 92:

"If the seller, after the refusal of the buyer to accept the goods, treats them as his own instead of setting them apart for the buyer, the title for all purpose remains in him, and he cannot thereafter maintain an action for the price."

This plea was not subject to the grounds of demurrer assigned to it, and the court did not err in overruling the demurrer of plaintiffs to it.

The plaintiffs filed replications No. 4, 5, 6, and 7 to this plea 5-A. The demurrers of the defendant to each of these replications were sustained by the court. Each replication admits the notes were given for the purchase price of the machines, and avers they were shipped to the defendant as the contract of purchase directed, and the defendant refused to accept and take the machines from the depot, and, to prevent them from being sold to pay charges, plaintiffs had them returned, and have stored them for the defendant. It appears from each replication that the plaintiffs have the machines stored for the defendant as the property of the defendant. If this is true, then the plaintiffs can maintain this suit for the contract price evidenced by the notes. The defendant by this plea admits that he purchased the machines, for which the notes were given, and that he failed to take them from the depot and pay for them; the plaintiffs reply that he refused to take them. This gave the plaintiffs the right to store the machines, or to retain the machines for the defendant and to sue him for the entire purchase price. The court erred in sustaining demurrers of defendant to these replications of plaintiffs to plea 5-A.

The principle of law applicable is thus stated in 24 Rawle C. L. § 352, p. 86, where the authorities are cited to sustain it, as follows:

"The seller, when the buyer declines to take and pay for the property, ordinarily has the choice of any of three methods of indemnifying himself against loss: (1) He may store or retain the property for the buyer and sue him for the entire price; (2) he may sell the property and recover the difference between the contract price and the price obtained on the resale; or (3) he may keep the property as his own and recover the difference between the market value at the time and place of delivery and the contract price."

See Fulton v. Leder Oil Co., 207 Ala. 350, 92 So. 613; Starr Jobbing House v. May Hosiery Mills, 207 Ala. 620,93 So. 572; Johnson v. Carden, 187 Ala. 142, 65 So. 813.

It appears, from the pleading, when the defendant declined to take and pay for the machines the plaintiffs elected to sue for the entire purchase price of the machines and to store or retain them for the defendant. The plaintiffs had the right to pursue this course and to exercise this choice of any of the three methods stated above, to prevent loss.

The court gave, at the request of the defendant, the general affirmative charge, with hypothesis in his favor, which charge was in writing.

The bill of exceptions does not purport to set out all of the evidence; nor does it appear to contain, in substance, all the evidence.

The judgment must be reversed, on account of the rulings of the court on demurrers to these replications of plaintiffs to plea 5-A of defendant; and it is not necessary for us to decide whether the court erred in giving this written charge in favor of the defendant.

For the errors mentioned, the judgment is reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.