Manufacturers' Finance Acceptance Corp. v. Woods

Appellee purchased an automobile from the McCann Motor Company, executing a mortgage thereon to the vendor to secure some deferred payments on the car. This mortgage was, concurrently with the purchase and its execution, transferred, for value, to the appellant. One of the stipulations in said mortgage contract was that, "whenever you (referring to the mortgagee) shall deem the debt insecure, * * * the full amount unpaid hereunder, including any note given, shall become due and payable forthwith, and you or your assigns may, without any previous notice or demand of performance, and without legal process, enter any premises where said chattel may be found, and take possession thereof, after which you may at your option, make such disposition of said chattel as you shall deem fit, and all payments made by me shall be retained by you as liquidated damages for the use of said chattel while in my possession, and not as a penalty. Or said chattel may be sold," etc. This appeal is from a judgment in favor of appellee, in a detinue suit brought against him by appellant, seeking the possession of the car in question. The case was tried before the judge sitting without a jury. In such situation the finding of the learned judge has, as is too well known to need the citation of authority, the same force and effect as the verdict of a jury. However, the execution and validity of the above-mentioned mortgage was in no wise questioned. Its admission in evidence was without objection. And, so far as we can see, we are in as advantageous position to pass upon the simple issue involved upon the trial, as was the nisi prius judge. It is well understood that a mortgage is construed most strongly against the mortgagor, Seay Hendrick v. McCormick,68 Ala. 549, or, as stated by our Supreme Court in the opinion in the case of J. Zimmern's Co. v. Granade, 212 Ala. 172,102 So. 210: "all instruments are to be taken 'contra proferentem' against him who gives, or undertakes, or enters into an obligation." We state and quote the above principle, though, we believe, unnecessarily, because really the quoted provision of the mortgage involved in this suit seems to us to need no construction. Much is made, in argument by counsel, over the action of the trial court in refusing to allow appellant's "local manager" to testify that "he deemed the debt (of appellee to appellant) insecure" at the time of the institution of this suit. We think the testimony sought by the questionimmaterial. The very fact of the bringing of the suit was, we hold, conclusive of the question of whether or not appellant did "deem the debt insecure," to the result that it did; and, under the plain terms of the mortgage, or, if not so, because the mortgage did not stipulate to the contrary, it was entitled to the immediate possession of the car, and judgment was *Page 204 erroneously rendered against it. Bank of Andalusia v. Freeman,200 Ala. 13, 75 So. 325; Holman v. Ketchum, 153 Ala. 360,45 So. 206; Boswell Woolley v. Carlisle, Jones Co., 70 Ala. 244; Marks v. Robinson Ledyard, 82 Ala. 69, 2 So. 292. Or, in view of the difference of opinion that has arisen among the members of this court, we will add that, because appellee wrote appellant on December 31, 1928, the following letter: "The Whitley Montgomery, Ala. "Montgomery, Dec. 31, "Manufacturers Finance Corp. "Dear Sir: Am writing you in regards of my car. I have a job in Palm Beach Fla. which will start Jan. 5 and I want to let you know about it before I leave I bought the car on those conditions as my wife and I both do Hotel work and was expecting to have this job when I bought the car. Would like to hear from you by return mail about this matter. Yours truly. R. W. Woods, 416 Dexter Ave., Montgomery. "P. S. And I have not gotten a receipt of my payment Dec. 24th" — and because the mortgage or conditional sales contract involved, contained the following stipulations: "* * * Or if said chattel is removed or attempted to be removed from the State * * * the full amount unpaid hereunder, including any note given, shall become due and payable forthwith, and you or your assigns may, without any previous notice or demand of performance, and without legal process, enter any premises where said chattel may be found, and take possession thereof, after which you may," etc. — appellant was clearly justified under this clause or provision of its said mortgage, etc., in instituting the detinue suit promptly upon January 5, 1929, and the trial court erred in overruling its motion for a new trial. The judgment is reversed, and the cause remanded. Reversed and remanded.